255 A.3d 385
Pa.2021Background
- Pennsylvania enacted the Medical Marijuana Act creating a public-application process for grower/processor (GP) and dispensary (DS) permits; the Act and temporary regulations treat permit applications as public records subject to the RTKL.
- The Department of Health received voluminous applications (GP and DS) and instructed applicants to submit both redacted and unredacted copies, posting redacted versions to its website.
- PennLive (reporter Wallace McKelvey) requested the applications under the RTKL; the Department largely accepted applicants’ redactions and did not independently review unredacted submissions.
- The Office of Open Records (OOR) reviewed the disputes: it ordered many disclosures, upheld limited trade-secret redactions for Terrapin, and protected certain personal-identifying information.
- The Commonwealth Court reversed in part, affirming some security- and trade-secret redactions (extending some industry-wide), denying supplementation of the record, and remanding to the OOR on limited points.
- The Pennsylvania Supreme Court: affirmed the Commonwealth Court on most procedural and burden allocation points, vacated insofar as the lower courts failed to fully consider whether Terrapin’s financial information implicated both confidential-proprietary and facility-security exemptions, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument (Requesters) | Defendant's Argument (Department / Applicants) | Held |
|---|---|---|---|
| Whether an agency may defer to third-party applicant redactions or must independently assess exemptions under the RTKL | Agency must disclose unless proper exemption proven; Department cannot shift its statutory duty — OOR/ courts should enforce disclosure. | Department argued it cannot effectively evaluate technical trade-secret/security claims and thus may rely on applicants; asked to reopen record if needed. | Held: Agency must independently evaluate and cannot delegate its disclosure burden to third parties; Department’s deference was improper and supplementation denied. |
| Whether similarly-situated applicants may receive identical redactions based on industry-wide evidence without each applicant submitting evidence | Requesters: apply RTKL presumption; individualized burdens required; evidence must be competent to support exemption. | Applicants (Harvest, amici): where evidence reflects industry-wide risks, exemptions should extend uniformly to similarly-situated applicants; record supplementation may be warranted. | Held: Lower courts may consider industry-wide evidence for similarly-situated applicants, but individualized proof remains required for elements like efforts to maintain secrecy; Commonwealth Court did not abuse discretion in its individualized approach and denial to reopen the record. |
| Whether Terrapin’s financial information is exempt as confidential proprietary information and/or implicates facility-security concerns (given cash-based industry) | Requesters: applications are public; Terrapin must meet the preponderance standard showing confidential proprietary elements and competitive harm. | Terrapin: financial data in cash-based marijuana industry is intertwined with security/banking risks; disclosure risks physical safety and competitive harm — OOR and courts should consider both confidentiality and security, including in camera review. | Held: Remanded. Supreme Court held the lower tribunals failed adequately to evaluate the interconnected nature of financial records and security risks; the OOR/ Commonwealth Court must reconsider (including in camera review if prudent). |
Key Cases Cited
- Bowling v. Office of Open Records, 75 A.3d 453 (Pa. 2013) (RTKL interpretation; agency disclosure duties)
- ACLU v. Pennsylvania State Police, 232 A.3d 654 (Pa. 2020) (reviewing court as factfinder and in camera review guidance)
- Mission Pennsylvania, LLC v. McKelvey, 212 A.3d 119 (Pa. Cmwlth. 2019) (Commonwealth Court decision below addressing security and trade-secret redactions)
- Pennsylvania State Police v. Grove, 161 A.3d 877 (Pa. 2017) (RTKL and public access principles)
- Office of Governor v. Donahue, 98 A.3d 1223 (Pa. 2014) (presumption of agency good faith under RTKL)
- Office of Open Records v. Center Township, 95 A.3d 354 (Pa. Cmwlth. 2014) (authority of OOR to conduct in camera review)
- Commonwealth, Dep’t of Educ. v. Bagwell, 131 A.3d 638 (Pa. Cmwlth. 2016) (third-party rights and agency non-waiver under RTKL)
- Food Marketing Inst. v. Argus Leader Media, 139 S. Ct. 2356 (2019) (U.S. Supreme Court FOIA decision on commercial/financial confidentiality cited for persuasive comparison)