240 A.3d 221
Pa. Commw. Ct.2020Background
- Matthew S. Payne (Requester) sought the evaluation committee scores given to BCI2's medical-marijuana grower-processor permit application after the Department of Health rejected the application as incomplete.
- Department witnesses (Sunny Podolak) described a four-stage review: intake, assessment, evaluation (committee of experts gives preliminary scores and notes), and permitting (MM Office reviews all applications, may void preliminary scores for incomplete apps, and assigns final rankings).
- The Department refused to produce the requested score sheets, invoking the RTKL predecisional deliberations exemption and a temporary Department regulation protecting reviewers' individual reviews/notes.
- The OOR agreed with the Department and denied access; Requester appealed to Commonwealth Court.
- The Court found the Department's affidavit insufficient to show the scores are deliberative/confidential, observed the Department had publicly released other applicants' scores, and concluded preliminary committee scores (as the committee's collective output) are not protected by the temporary regulation.
- Court reversed the OOR and directed disclosure of the evaluation committee's preliminary scores (with redaction permitted for any individual reviewer notes/comments that remain exempt).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of Department affidavit to prove exemption | Affidavit was conclusory, inconsistent with prior testimony, and should be disregarded | Affidavit described stages and asserted scores/notes are predecisional and internal | Court: affidavit did not sufficiently show the scores are deliberative/confidential; no bad faith found but burden not met |
| Whether preliminary scores are "predecisional and deliberative" under RTKL §708(b)(10) | Scores are not deliberative or confidential; mere numbers do not reveal internal deliberations | Scores are internal and were created before final permitting decision, so exempt | Court: scores are internal and predecisional but not deliberative/confidential; exemption does not apply |
| Whether Dept. met its burden to withhold records under RTKL | Requester bears that records are public (older regime) | Dept. must prove exemption by preponderance | Court: under current RTKL the agency has burden and Dept. failed to meet it; ordered production (subject to redaction) |
| Scope of temporary regulation protecting reviewer info (28 Pa. Code §1141.22(b)(11)) | Requester: protection covers individual reviewers/notes only, not committee's collective scores | Dept.: regulation shields reviewer reviews and related information from disclosure | Court: regulation protects individual reviews/notes but not the committee's aggregated preliminary score; committee score must be released (with redaction of exempt notes) |
Key Cases Cited
- Twp. of Worcester v. Office of Open Records, 129 A.3d 44 (Pa. Cmwlth.) (elements of predecisional deliberations exemption)
- Office of the Governor v. Scolforo, 65 A.3d 1095 (Pa. Cmwlth.) (affidavits must be detailed, nonconclusory, and in good faith)
- Carey v. Pa. Dep’t of Corr., 61 A.3d 367 (Pa. Cmwlth.) (deliberative material must reflect opinions/recommendations/advice)
- McGowan v. Pa. Dep’t of Envtl. Prot., 103 A.3d 374 (Pa. Cmwlth.) (testimonial affidavits may satisfy agency's burden if credible)
- Digital-Ink, Inc. v. Dep’t of Gen. Servs., 923 A.2d 1262 (Pa. Cmwlth.) (scores/rankings previously treated as deliberative under prior RTKL; distinguished here)