On June 24, the U.S. Supreme Court issued its ruling in the case of Food Marketing Institute v. Argus Leader Media, which dealt with trade secrets and other commercial information that may be confidential under the federal Freedom of Information Act.
The Supreme Court held that, “Where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy,” the information is confidential under FOIA.
On Friday, Oct. 4, the Office of Open Records issued a final determination in a case dealing (mostly) with medical marijuana permit applications. The agency in that case argued that the Food Marketing Institute decision should apply to Section 708(b)(11) of Pennsylvania’s Right-to-Know Law, which is designed to protect trade secrets and confidential proprietary information.
The OOR held that the RTKL’s treatment of trade secrets and confidential proprietary information (including its definition of “confidential proprietary information”) is significantly different than FOIA’s treatment of such information.
The OOR concluded that because of the different language in the two laws, the SCOTUS decision in Food Marketing Institute “is of no consequence to the RTKL’s definition of confidential proprietary information” and, thus, does not apply to records sought under the RTKL.
The OOR’s analysis is on pages 24-25 of this decision.
Judge James A. Gibbons of Lackawanna County has ordered the City of Scranton to pay $3,484 in legal fees to the Scranton Times-Tribune, finding that the agency had not preserved records requested under the Right-to-Know Law.
The decision, which came after an appeal of the Office of Open Records’ final determination in Lockwood v. City of Scranton (OOR Dkt. No.: AP 2019-0279), was issued yesterday.
Judge Gibbons wrote:
“[T]he City of Scranton does not quarrel that it had a mandatory duty under the [RTKL] to preserve the videotape requested and it further acknowledges its failure to do so. While it may not have been intentional, we must bear in mind the remedial purpose behind the [RTKL], and if that purpose is to be promoted, there need be consequences, even for benign neglect. We will, therefore, award court costs and attorney’s fees to the Plaintiffs.”
Jim Lockwood, a reporter for the Times-Tribune, requested video from surveillance cameras in Scranton City Hall. The city denied the request, stating that the videos were exempt under Section 708(b)(16) of the RTKL, the criminal investigative exemption.
Lockwood appealed the denial to the OOR. During the course of the appeal before the OOR, the city did not present any evidence. The OOR held that the video must be released.
The lesson for agencies is simple: When a RTKL request is received, all potentially responsive records should be maintained throughout the entire RTKL process, including any and all appeals.
Each morning, Tuesday through Saturday, the Office of Open Records sends an email summarizing every Final Determination issued the prior day.
Reading that email each morning is a great way — probably the best way — to keep up to date on what issues are being decided in Right-to-Know Law appeals and how those issues are being decided.
If you deal with Pennsylvania’s RTKL on a regular basis, or you’re interested in Pennsylvania government transparency generally, I think it’s a must-read.
To subscribe, just head over to the OOR website and fill out this simple form. You can also choose whether or not you want to subscribe to our occasional, more general newsletter about issues related to the RTKL, the Sunshine Act, and government transparency.
Here’s a sample of what the email looks like:
President Judge Katherine B. Emery of the Washington County Court of Common Pleas this week ruled that California Borough must release video from a holding cell in response to a Right-to-Know Request.
Judge Emery’s decision upholds the Final Determination issued by the OOR in June 2016.
To date, few appeals made to the Office of Open Records have involved social media. In one recent case, Davis v. City of Butler Police Department, the requester sought the following social media records (the request has been lightly edited for clarity):
- All posts made by users to the Butler City Police Department and Butler City K9 Fundraiser Facebook pages between Feb. 6, 2016, and Feb. 12, 2016.
- A list of all personnel who operate the Butler City Police Department Facebook page, including full name, salary, and date of hire.
- A list of all users who have been blocked from the Butler City Police Department Facebook page.
The OOR found that the Police Department demonstrated that no responsive records exist regarding the first item. During the appeal, the Department provided the requester with records responsive to the second item.
As to the third item, the OOR directed the Department to provide a screenshot of its Facebook page indicating whether any banned users were listed.
The Department provided the screenshots, but also said in its filing that “it is outside [the OOR’s] authority to direct [the Department] to compile records that are not maintained in the ordinary course of business.” See 65 P.S. § 67.705. The OOR held that the Department did not create or compile a record when it provided the OOR with the requested screenshot from its Facebook page; rather, it produced information from a database which was created by and is under the direct control of the Department.
I predicted in our 2015 Annual Report that the OOR will face more issues involving social media records. This case is a good example.
In a recent appeal, the Office of Open Records confronted the issue of how Pennsylvania’s Right-to-Know Law intersects with the state’s Investigating Grand Jury Act.
The OOR’s Final Determination in Hockeimer v. City of Harrisburg (Docket No.: AP 2015-1793) held that:
“In the instant matter, it is clear that the requested records exist independently of any grand jury investigation. The Request seeks records, including financial records, created by the City and various City personnel over the course of several years for various purposes in relation to the City’s operations. There is no evidence demonstrating that any of the requested records were created for use by the grand jury. Accordingly … the requested records are subject to disclosure under the RTKL.”
The Investigating Grand Jury Act, as a general rule, prohibits “disclosure of matters occurring before the grand jury.” Thus, the meaning of the phrase “occurring before the grand jury” becomes very important in this analysis.
As the Final Determination held, “There is little authority available in Pennsylvania jurisprudence which clarifies the meaning of ‘occurring before the grand jury.’ Consequently, the OOR looks to federal law for guidance.” (The wording of the federal grand jury law is very similar to the wording of Pennsylvania’s.)
Under federal case law, “information does not become a matter occurring before a grand jury simply by being presented to the grand jury, particularly where it was developed independently of the grand jury.” Further, “it has been well-established in this Circuit for over 14 years that if documents exist independently of the grand jury process, they are not matters occurring before the grand jury for purposes of Rule 6(e).” (Federal Rule of Criminal Procedure 6(e) deals with the secrecy of grand jury proceedings.) And, “The mere fact that a particular document is reviewed by a grand jury does not convert it into a ‘matter occurring before a grand jury’ within the meaning of Rule 6(e).”
As a result of this analysis, the OOR ordered the City of Harrisburg to release the requested records.
According to a report on Pennlive.com, the City “will appeal the Office of Open Records ruling with the Dauphin County Court of Common Pleas.”