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.
[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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