Request sought disciplinary records and additional information about four officers involved in the arrest of Luigi Mangione, as well as public statements and formal responses relating to his arrest. The agency proved that some records do not exist in its possession, custody, or control. Some records were facially exempt under Section 708(b)(7), which protects certain records related to employees’ information, while others were potentially criminal investigative records pursuant to Section 708(b)(16), which allows agencies to withhold records “relating to or resulting in a criminal investigation.” 2025-1415

Request sought information about each employee of the agency, including employees’ residential zip codes. The privacy interests of the employees outweighs any perceived public interest in disclosure of the residential zip codes in this instance. 2025-1789

Request sought various autopsy records. The agency indicated its willingness to provide records upon payment of fees pursuant to the Coroner’s Act, which governs the disclosure and associated costs of such records. 2025-2051

Request sought EDU waitlists. On appeal, the Borough granted the Request but charged a fee outside the statutory limitations for the responsive records. Accordingly, the Borough shall only charge the Requester a reasonable fee for the records in line with the OOR’s fee schedule. 2025-0514

Request sought auditable records, including CVRs and ballot images, among other things, related to elections. The CVR is a digital equivalent of the contents of a ballot box, which is exempt under the Election Code. Based on the Commonwealth Court’s decision in Previte, completed absentee and mail-in ballots, excluding identifying information, are public records. 2025-1281

Requester sought a lease agreement for the Department of Homeland Security to lease office space for Immigration Custom Enforcement (ICE) from the Luzerne County Flood Protection Authority. The lease is a are financial record and cannot be withheld in its entirety. The agency failed to provide evidence linking the disclosure of the record to a potential public security threat and was required to produce a copy of the lease. 2025-0720

Request sought the calendar entries and a date and time stamp list from security video within a courthouse for two elected officials. Security video from the county courthouse, although monitored from the police department, is a judicial record. The OOR does not have jurisdiction over judicial agencies or the ability to order disclosure of judicial records. 2025-1503

Recently, the use of generative artificial intelligence (AI) in Right-to-Know Law (RTKL) matters has become increasingly commonplace.  While nothing currently prohibits the use of AI when crafting a request, appeal, or submission to the Office of Open Records (OOR), users should be aware of the risks before doing so.

AI chatbots are currently not reliable tools for preparing submissions under the RTKL and should not be considered a substitute for legal counsel or professional representation. These tools frequently generate inaccurate or misleading information, including fabricated legal citations, erroneous summaries of case law, and false quotations from court decisions and OOR Final Determinations.

Such errors—commonly referred to as “AI hallucinations”—involve the creation of content that may appear authentic but is factually incorrect or entirely fictitious.  Filings to the OOR have included citations to non-existent cases, mischaracterizations of legal precedent, erroneous summaries of case law, and invented language attributed to legal authorities.  Parties using AI-generated content do so at their own risk and remain responsible for ensuring the accuracy of anything they submit during an OOR appeal.  Parties should never rely upon AI for legal advice.

The submission of AI-generated content without independently verifying the accuracy of its statements may subject parties to sanctions. Repeated submission of unverified AI-generated material—especially after prior inaccuracies have been identified—may result in additional penalties.  Under the RTKL, courts have the authority to impose sanctions, including fines and attorney’s fees, for frivolous arguments. See 65 P.S. § 67.1304(b), (c). Knowingly submitting false information to the Office of Open Records (OOR) or a court may also carry criminal consequences under Pennsylvania law. See 18 Pa.C.S. § 4904(a).  Finally, OOR Appeals Officers have the discretion to reject any filing that includes false statements, misrepresentations, fictitious legal citations, or duplicative content generated by AI.

While AI may be useful in some contexts, it currently struggles in the RTKL setting.  Please do not submit AI-generated content to the OOR without first checking its accuracy.  Parties are encouraged to point out false statements, nonexistent legal precedent, and misrepresentations, whether AI-generated or otherwise, to their assigned Appeals Officer.

When processing and responding to RTKL requests, Agency Open-Records Officers (AORO) should be aware that they may be presented with nonexistent or misleading legal precedent that would appear to require the release of information that is otherwise exempt or confidential.  AOROs should direct any questions about the authenticity of legal precedent to their solicitor(s). 

A recent Spotlight PA and Resolve Philly article detailed how some counties seize Social Security benefits from foster children under their care.  This brought awareness and criticism to an important issue.

A companion article outlined the methodology in capturing the financial data. The journalists sent RTKL requests for records related to the county collection of Social Security benefits to all 67 counties.

“For more than a year, counties slowly sent the newsrooms their data. Some were hesitant to hand it over, citing concerns about the privacy of the children in their care. However, the information was easily redacted. Some counties weren’t sure what the requests were asking for, so reporters ended up sending examples to them or negotiating for records in several mediations with the Office of Open Records.”

This description of the journalists’ methodology highlights the value of a lesser-known service provided by the Office of Open Records:  mediation.

Mediation is the process by which the requester, agency, and trained mediator from the OOR talk privately in a virtual meeting to discuss the request for records. The discussions and a listing of any documents or information that are ultimately provided are strictly confidential, even within the OOR.

Given the lack of publicity surrounding the mediation, journalists’ voluntary sharing of use of the program offers a rare chance to shine a light on its benefits.

In many facets of life, a satisfactory result for both sides is better achieved with conversation than an exchange over email. This may be the case with a request for records. Perhaps the requester can better explain what they are trying to seek, or the agency can offer a better description of the challenges in providing those records. A mutual understanding may lead to a compromise, with records being provided.

In the case mentioned in this article, “negotiating” via mediation helped create a database of 47 counties’ information on the capturing of foster children’s Social Security benefits.

As a requester, it is a great option if you believe an agency isn’t grasping what you are seeking; as an agency, a dialogue with the requester allows you to reach a consensus and avoid a potential lengthy court battle.

More details on the mediation program are on our website.

The Local General Government code provides that any information obtained from “a tax audit, tax return, tax report, investigation of tax liability, administrative hearing regarding tax liability or verification with respect to tax liability” is confidential, and the OOR has found that this restriction applies even in cases where taxes are levied against entities other than individuals. 2025-0197

Unlawful discrimination complaints filed with the Pennsylvania Human Relations Commission are exempt as noncriminal investigatory records. 2025-0426

The Educator Discipline Act prohibits the release of complaints filed against a teacher unless or until discipline is imposed. 2024-2950

The bank statements of a booster club for a specific school activity were found to be a record of a school district and subject to release. 2025-0069

Exemption 708(b)(11) protects trade secrets or proprietary information that might be divulged in the release of a record.  Chief Counsel Kyle Applegate provided the legal analysis. As of April 9, 2025, this exemption has been cited in 359 OOR appeals.

Section 708(b)(11) exempts:

 “A record that constitutes or reveals a trade secret or confidential proprietary information.”

Definitions of key terms in Section 102 of the RTKL provide critical details:

“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 [entity] that submitted the information.

“Trade secret.” 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 readably 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.

Multiple factors to meet burden

An agency must establish that both elements of one of the two-part definitions above are met for the exemption to apply; in other words, “trade secrets” and “confidential proprietary information” are distinct terms and not interchangeable.[1]  

The following is considered if “confidential proprietary information” is cited:

• The confidential aspect is based on reviewing “the efforts the parties undertook to maintain their secrecy.”[2]
• “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.”[3]

For “trade secret” claims, the following is considered:

(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.[4]

In addition, the proclaimed “trade secret” information must be an “actual secret of peculiar importance to the business and constitute competitive value to the owner”[5] with “substantial secrecy and competitive value” established as the most critical criteria.[6]  

Third parties may submit evidence

The courts have clarified that agencies may not waive third parties’ due process rights to submit evidence and assert the existence of trade secrets and/or proprietary information in requested records held by an agency.[7]  However, the agency must still review any redactions made by a third party, as the burden remains on the agency to support grounds for denial, even when more technical grounds are cited by the third party. An agency “cannot blindly defer to the determinations of private entities as to what information is exempt from the RTKL.”[8]

If a third party designates a record as a trade secret, and that record is requested, agencies shall notify the third party “within five business days of receipt of the request for the record.” [9] The third party then has five business days to provide input on release of the record.  Ultimately, the decision lies with the agency as to whether to deny the request or release the record.

Does not apply to financial records

The RTKL’s exemptions are limited when they involve agency financial records.[10] The RTKL explicitly excludes (b)(11) from the list of exemptions that apply to financial records, meaning that financial records cannot constitute or include confidential proprietary information or trade secrets.[11] Notably, precedent states that contracts between an agency and a contractor are financial records under the RTKL.[12] Accordingly, trade secrets or proprietary information included in a financial record may not be redacted.[13]

Some examples of records determined to be financial records and thus not subject to the exemption:

• A county’s contract with a private entity for public safety radio.[14]
• A township’s contract for IT services. [15]
• A commonwealth grant agreement, with attached proposal, to produce a series promoting beer made in Pennsylvania. [16]
• Hourly rates a county contractor paid to nurses.[17]

An agency may not have its own trade secrets

Agencies have been unsuccessful in claiming that their own records are a trade secret or confidential proprietary information.  Agencies subject to the RTKL “may not conduct [their] affairs precisely as a private entity does”[18] and a “trade secret contention ceases to be of any moment when the function is recognized as governmental, rather than that of a private business.”[19]  Courts have rejected claims of trade secrets when records have documented the agency’s governmental function.[20]  Courts have also rejected claims of confidential proprietary information when the agency itself created the records, rather than received them from an outside source, and when there is no competitive position because the agency “controls all liquor sales in Pennsylvania.”[21]

In Osdol vs. City of Pittsburgh, the OOR found that Pittsburgh could not claim trade secrets or confidential proprietary information in denying access to a proposal for the location of Amazon’s second headquarters. The OOR found that attracting a jobs-creating business to Pittsburgh is not equivalent to the City itself conducting business or commerce, ultimately concluding that “[t]he OOR cannot find any support for the notion that an agency can have a trade secret when it is not engaged in business or commerce.”[22]  The OOR also rejected claims of confidential proprietary information, noting that the proposal was not received by or submitted to another agency, as required by the exemption, but to Amazon.   

Copyrighted materials are not covered by this exemption

Since, by nature, the copyright process makes the material public, copyrighted material may not be a trade secret or confidential proprietary information.[23] However, the records may be protected from reproduction and only available for in-person inspection.

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[1] Office of the Governor v. Bari, 20 A.3d 634, 647-48 (Pa. Commw. Ct. 2011)

[2] Commonwealth v. Eiseman, 85 A.3d 1117, 1128 (Pa. Commw. Ct. 2014), rev’d in part, 125 A.3d 19 (Pa. 2015).

[3] Id.

[4] Crum v. Bridgestone/Firestone N. Amer. Tire, 907 A.2d 578, *19 (Pa. Super. Ct. 2006).

[5] Parsons v. Pa. Higher Educ. Assistance Agency, 910 A.2d 177, 185 (Pa. Commw. Ct. 2006).

[6] Crum, 907 A.2d 585, *19.

[7] Pa. Tpk. Comm’n v. Elec. Transaction Consultants Corp., 230 A.3d 548, 557 (Pa. Commw. Ct. 2020); Highmark Inc. v. Voltz, 163 A.3d 485, 490 (Pa. Commw. Ct. 2017) (en banc); Pa. Dep’t of Educ. v. Bagwell, 131 A.3d 638, 650 (Pa. Commw. Ct. 2016).

[8] McKelvey v. Pa. Dep’t of Health, 255 A.3d 385, 404 (Pa. 2021)

[9] 65 P.S. § 67.707(b).

[10] “[a]ny account, voucher or contract dealing with… (i) the receipt or disbursement of funds by an agency; or (ii) an agency’s acquisition, use or disposal of services, supplies, materials, equipment or property.” 65 P.S. § 67.102.

[11] 65 P.S. § 67.708(c) (“The exceptions set forth in subsection (b) shall not apply to financial records, except that an agency may redact that portion of a financial record protected under subsection (b)(1), (2), (3), (4), (5), (6), (16) or (17)…”).

[12] City of Harrisburg v. Prince, 219 A.3d 602, 615 (Pa. 2019) (detailing the history of financial records under both the Right-to-Know Act and RTKL, and noting that government contracts are financial records that have historically been subject to public access).

[13] Hancock v. Magellan Behavioral Health of Pa. Inc., No. 846 C.D. 2022, 2023 Pa. Commw. Unpub. LEXIS 436 (Pa. Commw. Ct. 2023) (noting that “an agency may not redact from financial records information which may have otherwise been withheld as a trade secret”).

[14] Jones and Observer-Reporter v. Washington County, OOR Dkt. AP 2024-2693.

[15] Wright v. Annville Twp. and BK Business Solutions, OOR Dkt. AP 2024-2114.

[16] Hennen and the Center Square v. Pa. Liquor Control Bd. and PA Media Group, OOR Dkt. AP 2024-0272.

[17] Mezzacappa v. Northampton County and Maxim Healthcare Servs., Inc., OOR Dkt. AP 2023-1951.

[18] Parsons v. Pa. Higher Educ. Assistance Agency, 910 A.2d 177, 186 (Pa. Commw. Ct. 2006), appeal denied, 917 A.2d 316 (Pa. 2007).

[19] Hoffman v. Pa. Game Comm’n, 455 A.2d 731, 733 (Pa. Commw. Ct. 1983).

[20] Pa. Liquor Control Bd. v. Burns, No. 1159 C.D. 2019, 2020 Pa. Commw. Unpub. LEXIS 313, *28-29 (Pa. Commw. Ct. 2019); see also Pa. Dep’t of Revenue v. Flemming, No. 2318 C.D. 2014, 2015 Pa. Commw. Unpub. LEXIS 626 (Pa. Commw. Ct. 2015) (“We reject as absurd the breadth of the Department’s claim of competition”).

[21] Picker v. Pa. Liquor Control Bd., No. 553 C.D. 2024, 2025 Pa. Commw. Unpub. LEXIS 25, *20 (Pa. Commw. Ct. 2025).

[22] Van Osdol and WTAE-TV v. City of Pittsburgh, OOR Dkt. AP 2017-2247, affirmed, No. SA-18-000135 (Allegh. C.C.P. 2018).

[23] Trethewe v. Downingtown Area Sch. Dist., No. 138 C.D. 2024, 2025 Pa. Commw. LEXIS 36 (Pa. Commw. Ct. 2025).

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