PA LCB v. The Hon. F. Burns ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania Liquor Control Board, :
Petitioner :
:
v. :
:
The Honorable Frank Burns, : No. 1159 C.D. 2019
Respondent : Submitted: May 12, 2020
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: June 16, 2020
The Pennsylvania Liquor Control Board (Board) petitions for review of
the July 24, 2019 final determination of the Pennsylvania Office of Open Records
(OOR) concluding that the records requested by the Honorable Frank Burns
(Requester), Representative of the 72nd Legislative District, are not exempt from
disclosure under the Right-to-Know Law (RTKL).1 Upon review, we affirm.
RTKL Request and Board Denial
On May 20, 2019, Requester submitted a RTKL request (Request) to
the Board, seeking “[r]ecords that reflect the total number of restaurant liquor
1
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101–67.3104.
licenses eligible for auction in each county as of May 10, 2019.” Request at 1,
Reproduced Record (R.R.) at 3.2 The Board denied the Request, contending that the
requested records contained confidential proprietary information exempt from
disclosure under RTKL Section 708(b)(11), 65 P.S. § 67.708(b)(11), and that
publicly disclosing the total number of licenses in each county that would be
available for sale via auction in the future would create an unintended chilling effect
on the market. Board’s Denial at 2, R.R. at 7. The Board also asserted that the
requested records contain information that pertains to its internal deliberations and
strategies to implement and carry out the auction initiative and are, therefore, exempt
from disclosure pursuant to RTKL Section 708(b)(10)(i)(A), 65 P.S. §
67.708(b)(10)(i)(A). Board’s Denial at 1-2, R.R. at 6-7. Further, the Board
maintained that although Section 470.3 of the Liquor Code,3 as enacted by Act 39 of
2016, initially required the Board to post online a list of all licenses available for
auction by March 15 of each year, that requirement was subsequently removed by
Act 85 of 2016,4 thus demonstrating legislative intent to render such information
nonpublic. Board’s Denial at 2, R.R. at 7.
Appeal to OOR
On June 24, 2019, Requester appealed the Board’s denial to the OOR,
contending that the requested records constitute public records subject to disclosure
2
Our citations to the Reproduced Record reference the page numbers of the PDF document,
as the record is not properly paginated in accordance with Pennsylvania Rule of Appellate
Procedure 2173.
3
Act of April 12, 1951, P.L. 90, as amended, added by the Act of June 8, 2016, P.L. 273,
43 P.S. § 4-470.3.
4
Act of July 13, 2016, P.L. 664, No. 85, § 24(4).
2
under the RTKL. OOR Appeal at 1, R.R. at 10. Requester asserted that the records
at issue did not contain confidential proprietary information because the requested
information is not commercial or financial, but simply a count of licenses. OOR
Appeal at 2, R.R. at 11. Requester contended that the records “were not received by
an agency, but rather have always existed within the agency.” Id. Requester
maintained that disclosure of the requested information would not harm the Board’s
competitive position as it “is the sole controller of the licenses and auctions.” Id.
Requester also claimed that the underlying liquor license data is already public
information in Pennsylvania, as licenses are suspended in public board meetings;
administrative law judge adjudications involving license violations, revocations and
suspensions are posted publicly online in a searchable database; and a list of expired
liquor licenses is available online through the Board’s publicly available licensing
database. Id.
Further, Requester asserted that the requested records did not contain
information pertaining to the internal, predecisional deliberations of an agency,
because a list or chart of the number of licenses available for auction in each county
is merely a set of facts that does not reveal internal discussions or deliberations
regarding a pending decision. See OOR Appeal at 2, R.R. at 11. Id. Countering the
Board’s reliance upon the legislative history of the Liquor Code, Requester further
contended that a review of bill analyses and floor debates failed to reveal a specific
legislative motive in amending Section 470.3. OOR Appeal at 2-3, R.R. at 11-12.
Position Statements and Affidavits
On July 5, 2019, the Board submitted a position statement and several
affidavits to the OOR. Board’s Position Statement at 1, 14, R.R. at 34, 48. The
3
Board contended that the total number of restaurant liquor licenses that remain
available for auction in each county in Pennsylvania constitutes a trade secret5 and
confidential proprietary information protected from disclosure under RTKL Section
708(b)(11). Board’s Position Statement at 5, R.R. at 39. Claiming that disclosure
would result in an “unwanted chilling effect” in “at least some counties,” the Board
stated that releasing the requested information “would be detrimental to [its] efforts
in that it would give potential bidders a forward-looking view into the markets of
each county that [is] likely to influence when they bid, how much they bid, or
whether they even bid at all in any given auction.” Board’s Position Statement at 5-
6, R.R. at 39-40. The Board further reiterated its previous contention that the
requested information reflected its internal, predecisional deliberations and was,
therefore, exempt pursuant to RTKL Section 708(b)(10)(i)(A), and also that factual
information may still qualify under this exemption where disclosure would be
tantamount to publication of an agency’s evaluation and analysis. Board’s Position
Statement at 9-10, R.R. at 43-44.
The Board maintained that the repeal of certain disclosure requirements
from Section 470.3 of the Liquor Code evidences legislative intent to hold as
confidential the number of licenses available for auction by the Board in each
county. Board’s Position Statement at 10, R.R. at 44. Further, the Board raised the
additional contentions that the requested records are exempt because their disclosure
would result in a loss of funds to the Commonwealth and cause personal harm to
5
Although the Board contended for the first time in its Position Statement that the
requested information constitutes trade secrets, this assertion is not waived. See Levy v. Senate of
Pa., 65 A.3d 361, 380 (Pa. 2013) (holding that an agency does not waive the ability to assert a
reason for denying a RTKL request on appeal by omitting the reason from the initial response).
4
existing licensees.6 Board’s Position Statement at 12, R.R. at 46 (citing RTKL
Section 708(b)(1)(i), (ii), 65 P.S. § 67.708(b)(1)(i), (ii)).
The Board submitted the affidavits of Jason Worley, Esq., its Deputy
Chief Counsel, and Michael Vigoda, its Director of Legislative Affairs. OOR Final
Determination at 2, R.R. at 275. Worley attested that he also serves as a Records
Legal Liaison to the Board’s Agency Open Records Officer, a position which
involves assisting with responses to RTKL requests. Worley Affidavit at 1, ¶¶ 3-4,
R.R. at 72. Worley stated that “[i]n addition to its regulatory responsibilities, the
[Board] is tasked with operating like a business to generate revenue for the benefit
of the Commonwealth and its citizens,” and that Section 470.3 of the Liquor Code
was enacted in order to enable the Board “to capitalize on the substantial value that
restaurant liquor licenses have in Pennsylvania as a result of the county quota system
established by [S]ection 461 of the Liquor Code, 47 P.S. § 4-461.” Worley Affidavit
at 2-3, ¶¶ 8, 11, R.R. at 73-74. Worley further attested as follows:
12. Prior to Act 39 of 2016, the county quotas were either
already met or exceeded in most counties, if not every
county, in Pennsylvania.
13. This meant that someone seeking to obtain a restaurant
liquor license had to find an available license for sale on
the open market, purchase the license for fair market
value, and then seek [Board] approval to transfer the
license.
14. Because of required disclosures made by applicants to
the [Board] during the transfer application process, the
[Board] developed a general awareness that restaurant
liquor licenses were being sold for substantial sums of
6
Although the Board did not assert these exemptions in its initial denial, these contentions
are not waived. See supra note 4.
5
money on the open market in many counties.
15. With this knowledge, the [Board] proposed to the
Legislature the idea of auctioning expired restaurant liquor
licenses as a way of generating additional revenue for the
Commonwealth without having to issue more licenses in
contravention of the established quota system.
Worley Affidavit at 3, ¶¶ 12-15, R.R. at 74.
Worley also indicated that the requirements to post all licenses
available for auction by March 1 and to auction licenses by June 1 were omitted from
Section 470.3 of the Liquor Code “when the [Board] determined that the total
number of expired licenses available to auction statewide totaled approximately
1,200 licenses,” such that “it became evident that adherence to these requirements
would result in the markets becoming flooded and the value of each license
significantly decreasing.” Worley Affidavit at 4, ¶ 19, R.R. at 75. Thus, Worley
noted that these amendments to Section 470.3 of the Liquor Code afforded the Board
“more discretion in terms of when to auction the available licenses and what
information to make available moving forward.” Worley Affidavit at 4, ¶ 20, R.R.
at 75. Worley acknowledged that “the [Board] has at times publicly disclosed the
overall statewide number of licenses that it still has available to auction.” Worley
Affidavit at 5, ¶ 25, R.R. at 76. However, Worley maintained that, “with the possible
limited exception of sharing information with Senate and/or House Appropriations
leadership for purposes of making budgetary/fiscal projections around the time that
[S]ection 470.3 was enacted and the first restaurant liquor license auction was
conducted, the [Board] has not otherwise disclosed the breakdown of the total
number of licenses available in each county.” Worley Affidavit at 5, ¶ 26, R.R. at
76.
6
Worley attested that “if [the requested] information were to be
[p]ublicly disclosed, it would[] improperly influence the current market for
restaurant liquor licenses in each county, undermine the legislative intent behind
[S]ection 470.3, and jeopardize what has otherwise been a successful strategy used
by the [Board] to implement [S]ection 470.3 in the manner that is most beneficial to
the Commonwealth and its citizens, as well as to existing restaurant liquor licenses.”
Worley Affidavit at 5-6, ¶ 28, R.R. at 76-77. Worley stated that market demand for
liquor licenses is unique to each county, such that “the [Board] has been very careful
in terms of when and how many licenses it chooses to auction in each county or area
of the state at any one time.” Worley Affidavit at 6, ¶¶ 29-30, R.R. at 77. Worley
reasoned that “[d]isclosing the specific number of licenses that still remain available
for auction in each county would be detrimental to the [Board’s] efforts in that it
would give potential bidders a forward-looking view into the markets of each county
that are likely to influence when they bid, how much they bid, or whether they even
bid at all in any given auction,” thereby resulting in “an unwanted chilling effect”
and either fewer bids or lower bid amounts in certain counties. Worley Affidavit at
6, ¶¶ 31-32, R.R. at 77. Worley also asserted that disclosing the requested
information would “no doubt impact the value of the restaurant liquor licenses that
are currently held by individuals or businesses in Pennsylvania” and that denying
the request would serve the interests of not only the Commonwealth, but also
existing restaurant liquor licensees.” Worley Affidavit at 7, ¶¶ 33-34, R.R. at 78.
Vigoda attested that at various times, legislators have requested the
number of licenses available for auction in each county, and that the Board
“consistently declined to fulfill these requests, with the possible limited exception
of sharing information with Senate and/or House Appropriations leadership for
7
purposes of making budgetary/fiscal projections around the time that [S]ection 470.3
was enacted and the first restaurant liquor license auction was conducted.” Vigoda
Affidavit at 1-2, ¶¶ 4-5, R.R. at 151-52. Vigoda also attested that divulging the
requested information “would improperly influence the current market for restaurant
liquor licenses in each county and would significantly undermine the [Board’s]
strategy and efforts to implement [S]ection 470.3 of the Liquor Code in the manner
that is most beneficial to the Commonwealth and its citizens, as well as to existing
restaurant liquor licensees.” Vigoda Affidavit at 2, ¶ 7, R.R. at 152. Vigoda
acknowledged that “the [Board] has at various times disclosed the total number of
restaurant liquor licenses that remain available for auction statewide without
revealing the breakdown of how many licenses remain available in each county, as
such practice is not believed to be detrimental to the Board’s strategy and efforts as
described above.” Vigoda Affidavit at 2-3, ¶ 8, R.R. at 152-53.
Requester submitted a position statement on July 9, 2019, contending
that the requested information is necessary to assist legislators in voting on pending
legislation. Requester’s Position Statement at 2, R.R. at 169. Requester also
asserted that the Board previously revealed the number of licenses available for
auction before certain committees of the Pennsylvania House of Representatives and
that this information was also available on certain news websites and legal blogs,
which Requester attached to his position statement as exhibits. Requester’s Position
Statement at 2, R.R. at 170. Requester submitted an affidavit provided by Kari
Orchard, Regional Caucus Director of the House Democratic Caucus Northwest
Delegation, who attested that she attended a meeting at which the Board’s Director
of Regulatory Affairs, Tisha Albert, disclosed the number of licenses available for
auction in a variety of counties that would be considered “oversaturated.” Orchard
8
Affidavit at 1, ¶¶ 7-10, R.R. at 174.
Also on July 9, 2019, the OOR requested additional information from
the Board and, in response, the Board submitted the relevant legislative history of
Section 470.3 of the Liquor Code. OOR Final Determination at 2-3, R.R. at 275-76.
On July 12, 2019, the Board submitted an affidavit provided by its Press Secretary,
Shawn Kelly. Kelly Affidavit at 1, ¶ 1, R.R. at 248; see also OOR Final
Determination at 3, R.R. at 354. Kelly attested that the Board has at various times
received requests from reporters and the news media for lists showing the total
number of restaurant liquor licenses available for auction in each county, but that the
Board’s Press Office has consistently declined to fulfill these requests. Kelly
Affidavit at 1, ¶¶ 4-5, R.R. at 248. Kelly further attested that “disclosure of [the
requested information] would improperly influence the current market for restaurant
liquor licenses in each county and would significantly undermine the [Board’s]
strategy and efforts to implement [S]ection 470.3 of the Liquor Code in the manner
that is most beneficial to the Commonwealth and its citizens, as well as to existing
restaurant liquor licensees.” Kelly Affidavit at 2, ¶ 7, R.R. at 249. Kelly
acknowledged that the Board’s “Press Office has also occasionally made limited
comments to reporters or the news media about the number of licenses available in
particular counties after it was determined that such comments would not have a
negative impact on the [Board’s] interests in conducting future auctions.” Kelly
Affidavit at 2, ¶ 9, R.R. at 249.
OOR Final Determination
On July 24, 2019, the OOR granted Requester’s appeal and ordered
disclosure of the requested records. OOR Final Determination at 14, R.R. at 287.
9
The OOR rejected the Board’s argument that the legislative history of Section 470.3
of the Liquor Code renders the disputed information nonpublic, further noting that
the Board failed to point to any confidentiality provisions in the statute. OOR Final
Determination at 6, R.R. at 257. The OOR reasoned that the decision of the General
Assembly to amend Section 470.3 of the Liquor Code to “[r]eliev[e] the Board of
the duty to create and post an annual ‘listing’ of licenses is not akin to saying that
the underlying information is confidential.” OOR Final Determination at 6 n.2, R.R.
at 257.
The OOR concluded that the Board failed to establish that the total
number of licenses available for auction by the Board for each county was exempt
from disclosure as a trade secret pursuant to RTKL Section 708(b)(11), reasoning
that the Board failed to demonstrate how other persons could derive economic value
from possessing this information. OOR Final Determination at 10, R.R. at 261. The
OOR pointed out that, regardless of whether the disputed information is accessible,
the Board still determines “when and how many licenses it chooses to auction in
each county.” Id. (quoting Worley Affidavit at 6, ¶¶ 29-30, R.R. at 77).
The OOR also determined that the Board failed to establish that the
requested records were exempt from disclosure because they contained confidential
proprietary information pursuant to RTKL Section 708(b)(11), reasoning that the
Commonwealth does not constitute a “person” for purposes of the definition of the
term set forth in the RTKL. OOR Final Determination at 11, R.R. at 262 (citing
RTKL Section 102, 65 P.S. § 67.102 (providing that information may constitute
“confidential proprietary information” when its disclosure would result in
“substantial harm to the competitive position of the person that submitted the
information”)). Further, the OOR concluded that the requested records were not
10
exempt under RTKL Section 708(b)(10)(i)(A), relating to internal, predecisional
deliberations of the Board, reasoning that the disputed information “is purely
factual” and “devoid of any deliberative character.” OOR Final Determination at
13, R.R. at 264.
Lastly, the OOR determined that the Board failed to establish that the
requested records were exempt from disclosure because they would result in the loss
of Federal or State funds pursuant to RTKL Section 708(b)(1)(i). OOR Final
Determination at 13, R.R. at 264. The OOR was not persuaded by the Board’s
argument that disclosure of the requested information could undermine its ability to
generate revenue, reasoning that the Board should have “affirmatively state[d] that
release of the information would result in actual loss of funding.” Id. (citing Cent.
Dauphin Sch. Dist. v. Hawkins, 199 A.3d 1005, 1016 (Pa. Cmwlth. 2018)). The
Board then filed a petition for review with this Court.
Discussion
On appeal, the Board argues that the OOR erred in failing to properly
consider the legislative history of Section 470.3 of the Liquor Code and in failing to
conclude that the information sought by Requester was subject to any of the
exemptions noted above. We disagree.
We begin with an overview of the RTKL. “The objective of . . . [this]
[l]aw . . . 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). Further, the RTKL is remedial in nature and is “designed to
promote access to official government information in order to prohibit secrets,
scrutinize the actions of public officials and make public officials accountable for
11
their actions.” Pa. Dep’t of Educ. v. Bagwell, 114 A.3d 1113, 1122 (Pa. Cmwlth.
2015) (citation omitted). “[C]ourts should liberally construe the RTKL to effectuate
its purpose[.]” Barnett v. Pa. Dep’t of Pub. Welfare, 71 A.3d 399, 403 (Pa. Cmwlth.
2013). “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, 114 A.3d at 1122.
Legislative History
In 2016, the General Assembly amended the Liquor Code through the
addition of Section 470.3, 47 P.S. § 4-470.3, which originally provided, in relevant
part:
(a) A restaurant liquor license shall become available for
auction by the [B]oard[7] under the following conditions:
(1) the license has not been renewed under section 470;
(2) the license has been revoked under section 471; or
(3) the licensee has failed to meet the requirements under
474.1.[8]
(a.1)(1) Subsection (a) shall apply to all restaurant liquor
licenses that became available after December 31, 1999.
(2) Any licenses not sold shall be available for sale at
future auctions, provided, however, that no more than fifty
7
More specifically, the Board is auctioning the right to apply for a license. See Section
470.3 of the Liquor Code, 47 P.S. § 4-470.3 (providing that “[a]fter the auction, the [B]oard shall
provisionally award to the person making the highest bid for the license, the right to file an
application for the license”).
8
Act of April 12, 1951, P.L. 90, art. IV, § 474.1, as amended, added by the Act of
December 9, 2002, P.L. 1653, No. 212, § 21.
12
licenses shall be auctioned in any county per year.
(b) A license becomes available for auction by the [B]oard
the day after the deadline has passed for appealing a
decision revoking or not renewing the license or the day
after the two-year window to file a renewal application
nunc pro tunc under section 470 has passed.
(c) The auction shall occur no later than June 1 of the
calendar year after the license becomes available for
auction and on a date to be determined by the [B]oard.
(d) By March 1 of each year, the [B]oard shall post on its
publicly accessible Internet website a listing of all the
licenses that are to be available for auction in June of that
year. The list shall also be available upon request.
(e) The [B]oard shall accept applications from persons
interested in bidding at the auction beginning March 1.
The application shall be in writing and shall contain
information as the [B]oard shall from time to time
prescribe. The [B]oard shall accept applications until
May 15 and may, in its discretion, accept applications
after that date.
Act of June 8, 2016, P.L. 273, No. 39, § 17.3 (effective Aug. 8, 2016) (emphasis
added). The General Assembly amended this statute prior to its effective date by
repealing subsections (c) through (e). See Act of July 13, 2016, P.L. 664, No. 85, §
24(4) (imd. effective) (Act 85) (stating, “Section 470.3(c), (d) and (e) of the act of
April 12, 1951 (P.L. 90, No. 21), known as the Liquor Code, are repealed”). This
amendment became effective immediately upon its passage on July 13, 2016. See
id. Further, Section 24(3) of Act 85 provides, in pertinent part, that “[t]he General
Assembly declares that the repeal [of subsections (c) through (e)] is necessary to
13
effectuate the addition of [S]ection 1799.3-E of the [Fiscal Code].”9 Act of July 13,
2016, P.L. 664, No. 85, § 24(3), R.R. at 198. Section 1799.3-E of The Fiscal Code,
in turn, provides that “[i]n order to encourage the auctioning of licenses under
[S]ection 470.3 of . . . the Liquor Code, the [Board] shall set the dates, times and
regulations for the auctioning of licenses.” 72 P.S. § 1799.3-E.
Before this Court,10 the Board argues that the OOR erred in failing to
recognize that the legislative history of Section 470.3 of the Liquor Code reveals
that the requested information is exempt from disclosure. See Board’s Brief at 19,
26. The Board contends that the omission by the General Assembly of the
requirement to publicly list licenses available for auction on its website and to
otherwise make such licenses publicly available upon request evidences legislative
intent to deem the information nonpublic. See Board’s Brief at 26. The Board
asserts that “[i]f the legislature had only intended to eliminate an obligation to create
a list or eliminate the deadline for posting, it could have easily done so while still
retaining language requiring information about the Board’s inventory of expired
licenses to be made publicly available upon request.” Id. at 26-27. The Board
therefore maintains that the above-outlined legislative amendments afford it the
business discretion to determine not only when to auction expired licenses, but
which information to make publicly available. Id. at 23, 27.
The Board reasons that “[m]aintaining control over what information is
made publicly available regarding the remaining inventory of expired licenses is
critical to being able to effectively exercise such business discretion and generate
9
Act of April 9, 1929, P.L. 343, as amended, added by the Act of July 13, 2016, P.L. 664,
72 P.S. § 1799.3-E.
10
“This Court’s standard of review of a final determination of the OOR is de novo and our
scope of review is plenary.” Hunsicker v. Pa. State Police, 93 A.3d 911, 913 n.7 (Pa. Cmwlth.
2014).
14
revenue for the Commonwealth.” Id. at 27 n.17. The Board relies on RTKL Section
306, which states that “[n]othing in this act shall supersede or modify the public or
nonpublic nature of a record or document established in Federal or State law,
regulation or judicial order or decree.” Id. at 25 (citing 65 P.S. § 67.306). The Board
also cites RTKL Section 3101.1, which provides that “[i]f the provisions of this act
regarding access to records conflict with any other Federal or State law, the
provisions of this act shall not apply.” Id. (citing 65 P.S. § 67.3101.1).
Requester counters that reviewing the legislative history of Section
470.3 of the Liquor Code is unnecessary, because the intent of the legislature in
enacting a statute may be gleaned from the words therein where it is clear and free
from ambiguity. Requester’s Brief at 13 (citing Commonwealth v. Shiffler, 879 A.2d
185, 189 (Pa. 2005)). Requester further contends that the requested records are not
exempt from disclosure, because the Liquor Code does not include a confidentiality
provision. Id. at 15. Regardless, Requester asserts that, assuming arguendo Section
470.3 of the Liquor Code is ambiguous, the relevant legislative history does not
support the Board’s position. Id. at 15-16. Requester maintains that omission of the
obligation to post information regarding licenses available for auction does not in
and of itself render such information nonpublic, as the plain language of the statute
does not prohibit disclosure of the requested information. Id. at 16-17.
In essence, the Board argues that Section 470.3 of the Liquor Code
renders the requested records nonpublic when read in conjunction with its legislative
history. Id. at 25. Our Supreme Court has advised as follows regarding the role of
legislative history in statutory construction:
Our rules of statutory construction make clear that in
interpreting statutes we must at all times seek to ascertain
and effectuate the legislative intent underlying the
15
enactment of the particular statute(s). 1 Pa.C.S. § 1921(a).
Where the words of a statute are clear and free from
ambiguity the legislative intent is to be gleaned from those
very words. Where, however, the statute is unclear or
susceptible of differing interpretations, the courts must
look to the necessity of the act, the object to be attained,
the circumstances under which it was enacted and any
legislative or administrative interpretations thereof.
Coretsky v. Bd. of Comm’rs of Butler Twp., . . . 555 A.2d
72 ([Pa.] 1989). In ascertaining the legislative intent of a
particular statute it is presumed, inter alia, that . . . the
legislature intends to favor the public interest as opposed
to any private interest. See generally[] 1 Pa.C.S. § 1922.
Pa. Fin. Responsibility Assigned Claims Plan v. English, 664 A.2d 84, 87 (Pa. 1995).
Thus, “[o]nly where the operative statutory language is not explicit in conveying the
intent of the General Assembly should courts look beyond the General Assembly’s
words to ascertain its intent.” Pennsylvanians for Union Reform v. Pa. Dep’t of
State, 138 A.3d 727, 731-32 (Pa. Cmwlth. 2016). Further, “we are mindful that
when the words of a statute are clear and free from all ambiguity, the letter of it is
not to be disregarded under the pretext of pursuing its spirit.” Shiffler, 879 A.2d at
189 (citing Section 1921(b) of the Statutory Construction Act of 1972, 1 Pa.C.S. §
1921(b)) (brackets and quotation marks omitted). “As a general rule, the best
indication of legislative intent is the plain language of a statute.” Commonwealth v.
Bradley, 834 A.2d 1127, 1132 (Pa. 2003).
Here, Section 470.3 of the Liquor Code manifests no ambiguity
regarding whether the number of restaurant liquor licenses available for auction by
the Board in each county constitutes public or nonpublic information. In fact, the
Liquor Code does not address that subject at all. Thus, the Board’s logic would
deem ambiguous any statute which fails to address a particular subject or issue and
16
would result in the needless disregard of plain meaning in favor of alternate modes
of construction. See English, 664 A.2d at 87. Further, we note that “[i]n order to
constitute an exemption under Section 305(a)(3) of the RTKL,11 the . . . statute must
expressly provide that the record sought is confidential, private, and/or not subject
to public disclosure.” Ali v. Phila. City Planning Comm’n, 125 A.3d 92, 99-100 (Pa.
Cmwlth. 2015) (emphasis added) (holding that the “Copyright Act[12] is not a federal
law that exempts materials from disclosure under the RTKL” as “[i]t neither
expressly makes copyrighted material private or confidential, nor does it expressly
preclude a government agency, lawfully in possession of the copyrighted material,
from disclosing that material to the public”).13 Thus, the Board fails to establish that
Section 470.3 of the Liquor Code overcomes the presumption that the disputed
records are public records. See RTKL Section 305(a), 65 P.S. § 67.305(a).
11
RTKL Section 305(a) provides as follows:
General rule.--A record in the possession of a Commonwealth
agency or local agency shall be presumed to be a public record.
The presumption shall not apply if:
(1) the record is exempt under section 708;
(2) the record is protected by a privilege; or
(3) the record is exempt from disclosure under any other Federal or
State law or regulation or judicial order or decree.
65 P.S. § 67.305(a).
12
17 U.S.C. §§ 101-1401.
13
We note that the General Assembly has expressly rendered other information accessible
to the public under the Liquor Code. See Section 473(b) of the Liquor Code 47 P.S. § 4-473(b)
(emphasis added) (stating that “[t]he names and addresses [of any person having a pecuniary
interest in the conduct of business on licensed premises] shall be recorded by the board and made
available to the public as a public record”).
17
Further, the Board’s interpretation runs counter to the presumption that
the legislature intends to favor the public interest, in this case by promoting access
to government information that will empower citizens to hold public officials
accountable for their actions. See Section 1922 of the Statutory Construction Act of
1972, 1 Pa.C.S. § 1922; SWB Yankees LLC, 45 A.3d at 1042; Bagwell, 114 A.3d at
1122. Moreover, we are not persuaded by the Board’s argument that the repeal of
subsections (c) through (e) demonstrates legislative intent to shield the disputed
information from public access. While we acknowledge that “[a] change in the
language of a statute ordinarily indicates a change in legislative intent,” here, the
legislative amendment evidences the General Assembly’s intent to relieve the Board
of the obligation to post the list of licenses available for auction and to hold the
auction on a statutorily mandated date; it does not evidence any intent to shield the
list of available licenses from public access. Cf. Clearwater Constr., Inc. v.
Northampton Cty. Gen. Purpose Auth., 166 A.3d 513, 520-21 (Pa. Cmwlth. 2017)
(holding that “the General Assembly’s conscious decision to amend [a] bill to
exclude offerors from bringing a claim against a non-Commonwealth entity, while
allowing them to pursue protests against the Commonwealth, [was] strong evidence
of its intent to distinguish the two”).
RTKL Exemptions
Having established that the Liquor Code does not impede disclosure of
the requested records, the relevant question becomes whether access may be denied
pursuant to any exemption under the RTKL. The Board argues on appeal that the
requested records are exempt from disclosure because they contained trade secrets
and confidential proprietary information under RTKL Section 708(b)(11), because
18
they reflected internal, predecisional deliberations pursuant to RTKL Section
708(b)(10)(1)(A), and because they involved a loss of funds under RTKL Section
708(b)(1)(i). We will address each argument in turn.
Trade Secrets and Confidential Proprietary Information
RTKL Section 708(b)(11) exempts from disclosure “[a] record that
constitutes or reveals a trade secret or confidential proprietary information.” 65 P.S.
§ 67.708(b)(11). These terms are not interchangeable and are analyzed separately
for purposes of the exemption. See Office of the Governor v. Bari, 20 A.3d 634,
647-48 (Pa. Cmwlth. 2011).
Trade Secrets
RTKL Section 102 defines the term “trade secret,” in relevant part, 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. In addition, six factors are relevant in determining trade secret
status under the RTKL:
19
(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.
Mission Pa., LLC v. McKelvey, 212 A.3d 119, 136 (Pa. Cmwlth. 2019), appeals
granted in part sub nom. McKelvey v. Pa. Dep’t of Health (Pa., Nos. 393, 394, &
396 MAL 2019, filed Jan. 28, 2020), appeal denied, (Pa., No. 395 MAL 2019, filed
Jan. 28, 2020) (quoting Smith v. Dep’t Envtl. Prot., 161 A.3d 1049 (Pa. Cmwlth.
2017)). A trade secret “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, 185 (Pa. Cmwlth. 2006). “The most
important indicia for determining whether information constitutes a trade secret are
‘substantial secrecy and competitive value to the owner.’” Id. (quoting W. Chester
Univ. of Pa. v. Schackner (Bravo Group, Inc.), 124 A.3d 382 (Pa. Cmwlth. 2015)).
Further, this Court has noted previously, albeit under the former Right-to-Know
Act,14 that “the trade secret contention ceases to be of any moment when the function
is recognized as governmental, rather than that of a private business[.]” Hoffman v.
Pa. Game Comm’n, 455 A.2d 731, 733 (Pa. Cmwlth. 1983).15
14
Act of June 21, 1957, P.L. 390, as amended, formerly 65 P.S. §§ 66.1–66.4, repealed and
replaced by the Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101–67.3104
15
This Court has previously applied caselaw decided under the former Right-to-Know Act
in construing exceptions that were preserved in the current RTKL. See Delaware County v.
Schaefer ex rel. Phila. Inquirer, 45 A.3d 1149, 1156 n.10 (Pa. Cmwlth. 2012) (reasoning that
“[b]ecause the ‘personal security exception’ historically encompassed, among other things, a right
20
The Board contends that the requested records contain “compilations”
of information and, as such, fall squarely within the definition of “trade secret” set
forth in RTKL Section 102. Board’s Brief at 36-37 n.24 (citing 65 P.S. § 67.102).
The Board further asserts that it has a business obligation to maximize revenue for
the Commonwealth through the auctioning of restaurant liquor licenses. Id. at 36.
The Board maintains that it is competing against private sellers in the market for
restaurant liquor licenses, and that private sellers could use the requested information
to their own advantage in determining whether and when to sell licenses. Id. at 33-
35. Thus, the Board contends that the affidavits it provided support that disclosing
the disputed information would result in a “chilling effect” in at least some counties
by influencing bid amounts and the timing of public participation in license auctions,
and would undermine “strategic advantage of being able to decide when and how
many licenses to auction in a particular county without having to disclose that it still
has additional licenses in that county to offer for sale at a later time.” Id. at 34.
The Board acknowledges that it has shared the number of licenses
available for auction in certain counties with Senate and House Appropriations
leadership for purposes of making budgetary and fiscal projections around the time
that Section 470.3 of the Liquor Code was enacted and when subsequently
discussing potential legislation. Id. at 35-36. Nevertheless, the Board contends that
this limited disclosure “does not change the fact that [it] has otherwise kept that
information confidential, and it does not automatically make the full catalog of
information public.” Id. at 35. Further, the Board asserts that “to the extent that [its]
Press Office has occasionally made limited comments to reporters or the news media
about the number of expired licenses available in particular counties, this was done
to privacy, the Legislature’s continued use of the ‘personal security’ language strongly indicates
the Legislature intended to preserve the right to privacy under the current RTKL”).
21
after it was determined that such comments would not have a negative impact on
[its] interests in conducting future auctions.” Id. at 36 (citing R.R. at 248).
Requester counters that the disputed records do not contain trade
secrets, because this exemption “ceases to be of any moment when the function is
recognized as governmental, rather than that of a private business,” and while the
Board may operate in a “business-like” manner, it is not a business. Requester’s
Brief at 20, 22 (quoting Hoffman, 455 A.2d at 733). Requester reasons that to the
extent the Board generates profit, it does so for the benefit of taxpayers, such that by
that reasoning all Commonwealth agencies operate as businesses. Id. at 22. Further,
Requester asserts that the Board fails to demonstrate that the requested information
possesses competitive value and maintains that the Board has no competition, as it
is the chief regulator of liquor sales in the Commonwealth. Id. at 22, 23 (citing Pa.
Dep’t of Revenue v. Flemming (Pa. Cmwlth., No. 2318 C.D. 2014, filed Aug. 21,
2015)). We agree with Requester that the disputed information is not exempt from
disclosure as a trade secret under RTKL Section 708(b)(11). The Board’s
acknowledgement that its Press Office has occasionally made comments to reporters
or the news media about the number of expired licenses available in particular
counties, the very information sought here by Requester, effectively precludes a
finding that such information constitutes a “trade secret.” Further, with respect to
commercial enterprises undertaken by government agencies, our Supreme Court has
opined that such enterprises remain “governmental functions” and that the
government’s entry into the “private sector” does not suggest a “diminished cause
for openness.” SWB Yankees LLC, 45 A.3d at 1042 (evaluating whether records in
the possession of a government contractor directly related to the governmental
function it had contracted to perform on behalf of the government were subject to
22
disclosure under RTKL Section 506(d)(1), 65 P.S. § 67.506(d)(1)). The Court
explained that the Legislature would not be “naïve about the potential for
inappropriate influences which have become a risk attending such,” thereby
militating “in favor of public scrutiny.” Id.; see also Parsons, 910 A.2d at 186
(reasoning that “[a]lthough it competes with private lenders and others[,] [the
Pennsylvania Higher Education Assistance Agency] is subject to the [RTKL], . . .
and it may not conduct its affairs precisely as a private entity does,” while
nevertheless acknowledging “that some of the requested records may refer to secret
information of competitive value”).
Here, the Board’s arguments in favor of the trade secrets exemption in
fact undermine its own position by demonstrating that the requested information
relates to its performance of a governmental function, thereby obviating the claimed
exemption. The Board contends that Section 470.3 of the Liquor Code, when
considered alongside its legislative history, reveals the nonpublic nature of the
requested information. See Board’s Brief at 19. However, this provision of the
Liquor Code specifically authorizes the Board to conduct auctions for restaurant
liquor licenses, thereby framing this duty as a governmental function. See SWB
Yankees LLC, 45 A.3d at 1041. Further, each of the three affidavits offered by the
Board asserts that holding restaurant liquor license auctions benefits the general
public, yet another indicia of a governmental function. See Worley Affidavit at 5-6,
¶ 28, R.R. at 76-77; Vigoda Affidavit at 2, ¶ 7, R.R. at 152; Kelly Affidavit at 2, ¶
7, R.R. at 249; see also SWB Yankees LLC, 45 A.3d at 1041.
The Board also emphasizes that it exercises business discretion in
conducting restaurant liquor license auctions, maintaining generally that it performs
a “unique business role.” See Board’s Brief at 23-24. However, as our Supreme
23
Court has noted, it is this very overlap with traditional private sector activities and
“the departure[] from the more conventional confines of government” that
necessitates “a reasonably broad construction of ‘governmental function’” in order
to further the objectives of the RTKL. SWB Yankees LLC, 45 A.3d at 1042. Thus,
because conducting these auctions constitutes a governmental function, the Board
cannot establish that the number of restaurant liquor licenses available for auction in
each county is exempt from disclosure as a “trade secret” pursuant to RTKL Section
708(b)(11).
Confidential Proprietary Information
RTKL Section 102 provides the following definition of the term
“confidential proprietary information”:
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. “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 injury if the information were
released.” Dep’t of Corr. v. Maulsby, 121 A.3d 585, 590 (Pa. Cmwlth. 2015). In
addition, “[c]ompetitive harm analysis is limited to harm flowing from the
affirmative use of proprietary information by competitors,” such that “[c]ompetitive
24
harm should not be taken to mean simply any injury to competitive position.” Id.
(internal citation and quotation marks omitted).
The Board notes that although the RTKL does not define the term
“commercial information,” its ordinary and common meaning is “viewed with
regard to profit.” Board’s Brief at 37 n.25 (citing Merriam-Webster Online
Dictionary). The Board contends that while the definition of confidential proprietary
information in the RTKL “seems to suggest that [such information] must belong to
a third party and be received by an agency, it does not logically follow that the
legislature would have intended to give these protections to private businesses, but
not a business operation run by the Commonwealth itself.” Id. at 37 n.26. The Board
also asserts that it has made extensive efforts to maintain the secrecy of the requested
information. Id. at 38. Further, the Board maintains that it is in direct competition
with private sellers of restaurant liquor licenses in the Pennsylvania market, and that
disclosure of the requested information would cause substantial competitive injury
by undermining “(1) its ability to make strategic business decisions regarding when
to sell licenses and how many licenses to offer at any given time; and (2) its ability
generate additional revenue for the benefit of the Commonwealth and its citizens.”
Id. at 28, 38.
Requester counters that the requested information does not constitute
confidential proprietary information because the fact that the Commonwealth is not
a “person” for purposes of RTKL Section 102, 65 P.S. § 67.102, precludes the Board
from establishing that disclosure of the requested information would cause
substantial harm to its competitive position. Id. at 25-26.
Black’s Law Dictionary defines the term “commercial,” in relevant
part, as “[o]f, relating to, or involving the buying and selling of goods; mercantile”
25
and “[o]f, relating to, or involving the ability of a product or business to make a
profit[.]” Commercial, Black’s Law Dictionary (11th ed. 2019).16 Because
restaurant liquor licenses are a regulatory tool, rather than a good, and, as established
above, the Board is exercising a governmental function in conducting the auctions,
it is not immediately apparent that the number of restaurant liquor licenses available
for auction in each county constitutes commercial information. However, assuming
arguendo the disputed information constitutes commercial information, we
nevertheless agree that the Board fails to establish that the requested records contain
confidential proprietary information.
As noted above, RTKL Section 102 defines “confidential proprietary
information,” in relevant part, as “information received by an agency . . . the
disclosure of which would cause substantial harm to the competitive position of the
person that submitted the information.” 65 P.S. § 67.102 (emphasis added). Here,
the Board does not receive the requested information from an outside party.17
Rather, the Board accumulates such information as a result of its own administrative
actions and assembles the same into a manageable list. Indeed, the Board is tasked
with administering and overseeing the statutory processes that would cause a
16
“Words and phrases shall be construed according to rules of grammar and according to
their common and approved usage; but technical words and phrases and such others as have
acquired a peculiar and appropriate meaning or are defined in this part, shall be construed
according to such peculiar and appropriate meaning or definition.” Section 1903(a) of the
Statutory Construction Act of 1972, 1 Pa.C.S. § 1903(a).
17
A review of relevant caselaw confirms that this exemption contemplates scenarios in
which the information is submitted to the agency by a third party, such as a government contractor.
See, e.g., Crouthamel v. Dep’t of Transp., 207 A.3d 432, 441 (Pa. Cmwlth. 2019) (holding that the
requested records, which contained information provided to the Department of Transportation by
a third-party contractor and its subcontractor, were exempt from disclosure for containing
confidential proprietary information pursuant to RTKL Section 708(b)(11)).
26
restaurant liquor license to become available for auction, whether through the lapse,
revocation, or surrender of the license. See Sections 470, 471, and 474.1 of the
Liquor Code, 47 P.S. §§ 4-470, 4-471, 4-474.1. Thus, to the extent the Board
“receives” the disputed information, it does so either internally or from the
independent office of the administrative law judge.18 See id. The Board then decides
“when and how many licenses . . . to auction in each county.” OOR Final
Determination at 10, R.R. at 261 (quoting Worley Affidavit at 6, ¶¶ 29-30, R.R. at
77). Hence, there can be no possibility of “substantial harm to the competitive
position of the person that submitted the information.” 65 P.S. § 67.102.
Consequently, the Board cannot establish that requested records contain confidential
proprietary information and are, thus, exempt from disclosure under RTKL Section
708(b)(11).
Internal, Predecisional Deliberations
RTKL Section 708(b)(10)(i)(A) exempts the following from public
access:
A record that reflects . . . [t]he internal, predecisional
deliberations of an agency, its members, employees or
officials or predecisional deliberations between agency
members, employees or officials and members, employees
or officials of another agency, including predecisional
18
The Office of Administrative Law Judge is an authority independent of the Board that
adjudicates all citations against licensees issued by the Pennsylvania State Police Bureau of Liquor
Control Enforcement. See Office of Administrative Law Judge, available at
https://www.lcb.pa.gov/Legal/Office-of-ALJ/Pages/default.aspx (last visited June 15, 2020). See
also Section 212 (a), (c) of the Liquor Code, 47 P.S. § 2-212(a), (c) (providing for the “creat[ion]
within the [B]oard [of an] autonomous office to be known as the Office of Administrative Law
Judge,” consisting of administrative law judges who “shall preside at all citation and other
enforcement hearings required or permitted under this act”).
27
deliberations relating to a budget recommendation,
legislative proposal, legislative amendment, contemplated
or proposed policy or course of action or any research,
memos or other documents used in the predecisional
deliberations.
65 P.S. § 67.708(b)(10)(i)(A). “In order to demonstrate that the withheld documents
are deliberative in character, an agency must submit evidence of specific facts
showing how the information relates to deliberation of a particular decision.”
McGowan v. Pa. Dep’t of Envtl. Prot., 103 A.3d 374, 383 (Pa. Cmwlth. 2014)
(internal citation and quotation marks omitted). “Only information that constitutes
confidential deliberations of law or policymaking, reflecting opinions,
recommendations or advice is protected as ‘deliberative.’” Carey v. Pa. Dep’t of
Corr., 61 A.3d 367, 378 (Pa. Cmwlth. 2013) (internal quotation marks omitted).
However, “purely factual material is severable and, in general, should be disclosed
even when it is located within a document containing exempted predecisional
deliberations.” McGowan, 103 A.3d at 386; see also Township of Worcester v.
Office of Open Records, 129 A.3d 44, 61 (Pa. Cmwlth. 2016) (stating that “[f]actual
information is not deliberative in character”). Nevertheless, “factual material can
still qualify as deliberative information if its disclosure would so expose the
deliberative process within an agency that it must be deemed exempted; or, in other
words, when disclosure of the factual material would be tantamount to the
publication of the [agency’s] evaluation and analysis.” McGowan, 103 A.3d at 387
(internal citation and quotation marks omitted).
The Board contends that “[t]he per county inventory of expired licenses
is effectively a working list that [it] regularly uses to strategize and determine when
and how many licenses to auction in a particular county or particular part of the state
at any given time,” such that this information “is predecisional in nature relative to
28
decisions that have not yet been made about conducting future license auctions[.]”
Board’s Brief at 41. Acknowledging that the requested information is factual in
nature, the Board nevertheless maintains that disclosure thereof would expose its
strategy and deliberative process. Id. The Board therefore asserts that disclosure of
the disputed information “would give insight into how the [Board] is selecting
licenses to auction in each county and how often in comparison to the available
number of licenses,” such that “prospective bidders and others would be able to
make predictions about future auctions and use the information against the [Board]
in trying to implement its strategy.” Id. at 40-41. The Board contends that “[m]aking
such information publicly available would also create the opportunity for third
parties to lobby [the Board] an effort to exert outside influence on decisions that are
made regarding the license auctions.” Id. at 42. Requester counters that the disputed
records do not reflect internal, predecisional deliberations, but rather contain factual
information. Requester’s Brief at 28.
Here, the Board’s own argument demonstrates the inapplicability of the
asserted exemption. The Board asserts that the requested information “is
predecisional in nature relative to decisions that have not yet been made about
conducting future license auctions[.]” Board’s Brief at 41 (emphasis added).
However, successfully invoking the exemption requires evidence of specific facts
demonstrating how the information relates to deliberation of a particular decision.
See McGowan, 103 A.3d at 383. Further, the Board admits that the disputed
information is factual in nature. See Board’s Brief at 41. Despite asserting that
disclosure of these facts would nevertheless expose its strategy and deliberative
process regarding the selection of licenses to auction in each county, we are
unpersuaded such disclosure “would be tantamount to the publication of the
29
[agency’s] evaluation and analysis.” McGowan, 103 A.3d at 387 (internal citation
and quotation marks omitted); see also Board’s Brief at 40-41. As noted by the OOR
and conceded by the Board, even with knowledge of the total number of restaurant
liquor licenses available for auction in each county, the general public is still not
privy to the number of licenses the Board will select for auction in each county and
when each auction will take place. See Worley Affidavit at 6, ¶¶ 29-30, R.R. at 77;
see also OOR Final Determination at 10 n.4, R.R. at 261.
We fail to discern how revealing raw data regarding the total number
of licenses the Board could potentially select for auction in each county provides
insight into any policymaking, recommendations, or other deliberative processes of
the Board. See Carey, 61 A.3d at 378; see also McGowan, 103 A.3d at 386-89
(affirming in part, vacating in part and remanding to the OOR to conduct in camera
review of two documents that were deliberative in nature to the extent they contained
a summarized version of rough drafts of a final report of the Department of
Environmental Protection regarding whether or not to re-designate a creek and
“concern[ed] the Department’s thought process in determining when to release the
final report for public comment,” yet also may have “contain[ed] qualitative or
statistical data that [could] be severed from the deliberative portions of those
documents”). Thus, the Board fails to demonstrate that the requested records are
exempt from disclosure because they reflected internal, predecisional deliberations
of an agency pursuant to RTKL Section 708(b)(10)(i)(A).
30
Loss of Funds/Personal Security
RTKL Section 708(b)(1)(i) exempts from public access “[a] record, the
disclosure of which . . . would result in the loss of Federal or State funds by an
agency or the Commonwealth[.]” 65 P.S. § 67.708(b)(1)(i).
The Board argues that the OOR erred in concluding that disclosure of
the requested records would not result in the loss of funds to the Commonwealth for
purposes of this exemption. Board’s Brief at 42. The Board acknowledges that it
does not receive Federal or State funding as part of its license auction initiative. Id.
at 42-43. Nevertheless, the Board contends that Section 470.3 of the Liquor Code
grants it the authority to generate additional revenue for the Commonwealth and that
disclosure of the requested information would undermine this specific legislative
purpose by undermining its ability to generate revenue. Id. at 43. The Board reasons
that “[i]n at least some counties, where there is an abundance of licenses available,”
disclosure of the requested information “would more likely than not create an
unwanted chilling effect resulting in fewer bids and/or less bid amounts.” Id.
Requester counters that the Board fails to invoke the exemption
contained in RTKL Section 708(b)(1)(i) because the affidavits it supplied attested
only to the possibility that disclosing the requested information may result in a loss
of revenue. Requester’s Brief at 29-30.
We agree with Requester and the OOR that the Board’s evidence fails
to establish that the disputed records are exempt under RTKL Section 708(b)(1)(i).
“Section 708(b)(1)(i) of the [RTKL] exempts from disclosure ‘[a] record, the
disclosure of which would result in the loss of Federal or State funds by an agency
or the Commonwealth[.]’” Cent. Dauphin Sch. Dist., 199 A.3d at 1016 (emphasis
in original) (quoting 65 P.S. § 67.708(b)(1)(i)). This exemption “requires more than
31
the mere possibility of a loss of [] funds.” Id. Here, the affiants attesting on behalf
of the Board merely posit that disclosing the requested information would
improperly influence the current market for restaurant liquor licenses across the
Commonwealth, resulting in lower bid amounts in some counties and undermining
the Board’s strategy in conducting auctions. See Worley Affidavit at 6, ¶¶ 31-32,
R.R. at 77; Vigoda Affidavit at 2, ¶ 7, R.R. at 152; Kelly Affidavit at 2, ¶ 7, R.R. at
249.
We agree with the OOR that these vague affidavits do not carry the
Board’s burden in establishing the exemption as they merely speculate regarding the
possible loss of future revenue. See W. Chester Univ. of Pa., 124 A.3d at 393
(internal citation and quotation marks omitted) (stating that “[a]n affidavit must be
specific enough to permit this Court to ascertain how disclosure of the entries would
reflect that the records sought fall within the proffered exemptions” under the
RTKL); Pa. State Police v. Muller, 124 A.3d 761, 765 (Pa. Cmwlth. 2015) (holding,
for purposes of establishing an exemption from disclosure under the RTKL, that an
“affidavit must be detailed, nonconclusory, and submitted in good faith”). Thus, the
Board fails to establish that the requested information would result in the loss of
state funds and is, therefore, exempt pursuant to RTKL Section 708(b)(1)(i).
Finally, the Board asserts that the OOR erred in failing to address its
argument that the requested information is exempt from disclosure under Section
708(b)(1)(ii), 65 P.S. § 67.708(b)(1)(ii), because its disclosure would cause personal
harm to existing licensees. Board’s Brief at 44. While the OOR did err in failing to
address this argument, such error was harmless.
RTKL Section 708(b)(1)(ii) exempts from public access “[a] record,
the disclosure of which . . . would be reasonably likely to result in a substantial and
32
demonstrable risk of physical harm to or the personal security of an individual.” 65
P.S. § 67.708(b)(1)(ii). In order for this exemption to apply, an agency “must
demonstrate . . . (1) a ‘reasonable likelihood’ of (2) a ‘substantial and demonstrable
risk’ to a person’s personal security.” Delaware County v. Schaefer ex rel. Phila.
Inquirer, 45 A.3d 1149, 1156 (Pa. Cmwlth. 2012). This Court noted in Delaware
County that a risk to a person’s “personal security” may include “a threat to one’s
financial well-being.” Id. at 1155 (citing Times Publ’g Co., Inc. v. Michel, 633 A.2d
1233, 1238 (Pa. Cmwlth. 1993), superseded by statute as stated in Office of the
Lieutenant Governor v. Mohn, 67 A.3d 123 (Pa. Cmwlth. 2013)).
The Board contends that “any negative effects resulting from the
disclosure of the requested list [would] also no doubt impact the value of the
restaurant liquor licenses that are currently held by individuals or businesses in
Pennsylvania.” Board’s Brief at 44. The Board maintains that disclosure of the
requested information “may cause a significant decrease in the market demand for
[restaurant liquor] licenses” available for transfer by licensees “in the private market
because of potential purchasers being more inclined to wait to buy a license if they
know the [Board] will be selling additional licenses in a particular county at some
point in the future, or if there is an abundance of licenses available within their
county.” Id. at 45. The Board’s arguments are misplaced.
First, the potential harm that the Board references is merely speculative,
which this Court has previously found to be insufficient for application of the
personal security exemption. See Governor’s Office of Admin. v. Purcell, 35 A.3d
811, 820 (Pa. Cmwlth. 2011) (stating that “[m]ore than mere conjecture is needed”
to establish the “personal security” exemption under the RTKL). Second, the
potential harm that the Board references is not the type of harm that is generally
33
protected under the personal security exemption of Section 708(b)(1)(ii). This Court
has interpreted the term “personal security” to “comprise innumerable rights,
including the right to privacy and confidentiality, and the right to be secure in one’s
possessions, monies, investments and benefits, and the freedom from identity theft.”
Delaware County, 45 A.3d at 1155. Section 708(b)(1)(ii) has been traditionally
applied to protect an individual’s identifying information, such as a home address,
birthdate, or social security number. See Pa. State Educ. Ass’n v. Dep’t of Cmty. &
Econ. Dev., 148 A.3d 142, 144 (Pa. 2016) (holding that this “Court erred in ruling
that there is no constitutional right to privacy in one’s home address in connection
with RTKL requests,” and that this right “may not be violated unless outweighed by
a public interest favoring disclosure”); Purcell, 35 A.2d 814, 821 (concluding that
the “personal security” exemption protected the birthdates of state employees where
disclosure would substantially heighten the risk of identity theft and fraud); Times
Publ’g Co., Inc., 633 A.2d at 1238 (holding that “public disclosure of [firearms]
licensees’ . . . social security numbers . . . is [] protected by the personal security
exception to the [former Right-to-Know Act],” noting that “a person’s social security
number may be ‘misused’ to ‘obtain a person’s welfare benefits or Social Security
benefits, order new checks at a new address on that person’s checking account,
obtain credit cards, or even obtain a person’s paycheck’”). Thus, the Board could
not establish that disclosure of the requested information would create “(1) a
‘reasonable likelihood’ of (2) a ‘substantial and demonstrable risk’ to a person’s
personal security.” Delaware County, 45 A.3d at 1156.
34
Accordingly, albeit partially on other grounds discussed herein,19 we
affirm the final determination of the OOR.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
19
This Court may affirm on grounds different than those relied upon by the court or agency
below if such grounds for affirmance exist. Belitskus v. Hamlin Twp., 764 A.2d 669, 671 (Pa.
Cmwlth. 2000); Continuous Metal Tech., Inc. v. Unemployment Comp. Bd. of Review, 740 A.2d
1219, 1224 (Pa. Cmwlth. 1999).
35
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania Liquor Control Board, :
Petitioner :
:
v. :
:
The Honorable Frank Burns, : No. 1159 C.D. 2019
Respondent :
ORDER
AND NOW, this 16th day of June, 2020, the July 24, 2019 final
determination of the Office of Open Records is hereby AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge