212 A.3d 119
Pa. Commw. Ct.2019Background
- Pennsylvania Department of Health (DOH) received dozens of medical‑marijuana grower/processor (GP) and dispensary (DS) permit applications. The Medical Marijuana Act and DOH temporary regulation state applications are public records "subject to" the RTKL but exempt facility security details.
- Requester (Wallace McKelvey / PennLive / The Patriot‑News) sought unredacted permit applications; DOH posted redacted versions and denied release of certain sections citing privacy, trade secret/confidential proprietary information, and facility/computer security exceptions.
- OOR stayed the matter to allow DOH to reassess redactions; DOH largely relied on permittees’ redactions and submitted limited affidavits/logs. Only Terrapin and Cresco filed affidavits supporting redactions with varying detail.
- OOR ordered disclosure with minimal redactions: personal identifiers, some Attachment D pages, and Terrapin’s proven trade secrets; it rejected most security and proprietary claims as insufficiently proven.
- DOH and multiple permittees appealed; they also sought to supplement the record on appeal with additional evidence. The Commonwealth Court declined to supplement the record and reviewed the existing evidence.
- The Court reversed in part: it allowed narrowly tailored redactions of specified facility/security information for Terrapin and Cresco (and limited DOH redactions for Mission/Harvest/KW as described in DOH logs) under the RTKL facility‑security exception, and affirmed OOR in all other respects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DOH/permits properly redacted applications under RTKL exceptions and the Act’s public‑record provision | Requester: applications are public under the Act; DOH lacked legal basis for broad redactions | DOH/Permittees: security, trade secret, and privacy exceptions (and DOH temporary regulation) justify redactions | Court: Applications are public but exemptions apply only if supported by evidence; affirmed most OOR dispositions and allowed limited security/trade‑secret redactions where proven |
| Whether Court should accept additional evidence on appeal (supplement record) | DOH/Mission: may submit further affidavits/logs to justify redactions | Requester: record was fully developed before OOR; supplementation is improper | Court: denied supplementation; parties had opportunity before OOR and failed to justify late evidence |
| Applicability of RTKL facility/security exemption (Section 708(b)(3)) to application content | DOH/Permittees: entire security sections and facility plans exempt; Temporary Regulation also protects security details | Requester: broad redactions not shown to create reasonable likelihood of endangerment | Court: granted limited redactions—only specific security locations/processes (e.g., surveillance locations, transport/patient‑data processes) where affidavits proved reasonable likelihood of harm (Terrapin, Cresco; limited DOH redactions for others) |
| Trade secret / confidential proprietary protection for application content (Section 708(b)(11)) | Permittees: cultivation, extraction, manufacturing, financials, organizational docs are trade secrets/confidential | Requester: insufficient proof; broad categorical claims insufficient | Court: Terrapin satisfied trade‑secret factors with detailed affidavits (cultivation/extraction processes protected); other permittees failed to show reasonable secrecy efforts so their claims denied |
Key Cases Cited
- Pa. State Educ. Ass'n v. Dep't of Cmty. & Econ. Dev., 148 A.3d 142 (Pa. 2016) (recognition and balancing of constitutional privacy against public access under RTKL)
- Borough of Pottstown v. Suber‑Aponte, 202 A.3d 173 (Pa. Cmwlth.) (construction of facility‑security exemption requiring reasonable likelihood of endangering safety)
- Highmark Inc. v. Voltz, 163 A.3d 485 (Pa. Cmwlth.) (parties bear burden to submit evidence; agency must develop record)
- Jones v. Office of Open Records, 993 A.2d 339 (Pa. Cmwlth.) (agency must prove applicability of its regulation/exemption)
- Smith v. Dep't of Envtl. Prot., 161 A.3d 1049 (Pa. Cmwlth.) (trade‑secret/confidentiality analysis factors and importance of secrecy measures)
- Dep't of Labor & Indus. v. Heltzel, 90 A.3d 823 (Pa. Cmwlth.) (appellate court generally declines to act as factfinder; defer to OOR as initial factfinder)