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FINAL DETERMINATION

IN THE MATTER OF :
:
KAREN SHUEY AND THE READING :
EAGLE, :
Requester :
:
v. : Docket No: AP 2018-1851
:
BERKS COUNTY, :
Respondent :

INTRODUCTION

Karen Shuey (“Requester”), a reporter with the Reading Eagle, submitted a request

(“Request”) to Berks County (“County”) pursuant to the Right-to-Know Law (“RTKL”), 65 P.S.

§§ 67.101 et seq., seeking names and relevant information submitted by the entities with interest

in purchasing the Berks Heim nursing home. The County partially denied the Request, providing

the names of the entities, but stating that the relevant information is not a record of the County.

The Requester appealed to the Office of Open Records (“OOR”). For the reasons set forth in this

Final Determination, the appeal is granted, and the County is required to take further action as

directed.

FACTUAL BACKGROUND

On September 20, 2018, the Request was filed, seeking “[t]he names and all relevant

information submitted by the seven entities that have expressed interest in purchasing the Berks

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Heim nursing home.” On September 21, 2018, the County invoked a thirty day extension during

which to respond. See 65 P.S. § 67.902. On October 4, 2018, the County partially denied the

Request, providing the names of the seven entities, but stating that the relevant information was

not provided to the County and is not, therefore, a record of the County. The County also suggests

that the County Code applies to the Request and protects the requested records from disclosure

because they do not constitute fiscal records or meeting minutes.

On October 11, 2018, the Requester appealed to the OOR, challenging the denial and

stating grounds for disclosure. The OOR invited both parties to supplement the record and directed

the County to notify any third parties of their ability to participate in this appeal. See 65 P.S. §

67.1101(c).1

On October 12, 2018, the Requester submitted her position statement, indicating that she

received the names, but she should have also been provided with the remaining information sought

in the Request. She explained that the County hired a law firm to assess the possible sale of the

Berks Heim nursing home. The Requester states that, at a public meeting, a report was discussed,

and the County asked the public to step outside while the County conducted an executive session.

She states that she filed the Request to obtain information regarding the entities and the information

they submitted to the County.

On November 2, 2018,2 the County submitted a position statement reiterating its grounds

for denial, as well as arguing that the County Code deprives the OOR of jurisdiction and that the

Requester did not sufficiently appeal the County’s denial. Further, the County argues that the

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The County has not stated if it notified any third parties of their ability to participate in this appeal.
2
The record for this case closed on November 1, 2018. On November 2, 2018, the County submitted information on
appeal. As the submission is relevant to the issues presented, the OOR will accept the County’s submission. See 65
P.S. § 67.1102(a)(2) (appeals officers may admit into evidence documents that the appeals officer believes to be
relevant and probative).

2
Requester cannot modify her Request on appeal. With respect to the information requested, the

County argues that it is not required to obtain information from Stevens & Lee pursuant to 65 P.S.

§ 67.506(d). Additionally, the County argues that the information is exempt as economic capability

of a possible purchaser pursuant to 65 P.S. § 67.708(b)(26), contains confidential proprietary

information, 65 P.S. § 67.708(b)(11), and personal information protected by the constitutional right

to privacy. In support of its position, the County submitted affidavits, made under the penalty of

perjury, from Michael Vind, Managing Director of Financial S&Lutions, and Christian Leinbach,

the Chair of the County’s Board of Commissioners, and Maryjo Gibson, Open Records Officer for

the County.

LEGAL ANALYSIS

“The objective of the Right to Know Law ... is to empower citizens by affording them

access to information concerning the activities of their government.” SWB Yankees L.L.C. v.

Wintermantel, 45 A.3d 1029, 1041 (Pa. 2012). Further, this important open-government law is

“designed to promote access to official government information in order to prohibit secrets,

scrutinize the actions of public officials and make public officials accountable for their

actions.” Bowling v. Office of Open Records, 990 A.2d 813, 824 (Pa. Commw. Ct. 2010), aff’d 75

A.3d 453 (Pa. 2013).

The OOR is authorized to hear appeals for all Commonwealth and local agencies. See 65

P.S. § 67.503(a). An appeals officer is required “to review all information filed relating to the

request” and may consider testimony, evidence and documents that are reasonably probative and

relevant to the matter at issue. 65 P.S. § 67.1102(a)(2). An appeals officer may conduct a hearing

to resolve an appeal. The law also states that an appeals officer may admit into evidence testimony,

evidence and documents that the appeals officer believes to be reasonably probative and relevant

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to an issue in dispute. Id. The decision to hold a hearing is discretionary and non-appealable. Id.;

Giurintano v. Pa. Dep’t of Gen. Servs., 20 A.3d 613, 617 (Pa. Commw. Ct. 2011). Here, the parties

did not request a hearing; however, the OOR has the requisite information and evidence before it

to properly adjudicate the matter.

The County is a local agency subject to the RTKL that is required to disclose public

records. 65 P.S. § 67.302. Records in possession of a local agency are presumed public unless

exempt under the RTKL or other law or protected by a privilege, judicial order or decree. See 65

P.S. § 67.305. Upon receipt of a request, an agency is required to assess whether a record requested

is within its possession, custody or control and respond within five business days. 65 P.S. § 67.901.

An agency bears the burden of proving the applicability of any cited exemptions. See 65 P.S. §

67.708(b).

Section 708 of the RTKL places the burden of proof on the public body to demonstrate that

a record is exempt. In pertinent part, Section 708(a) states: “(1) The burden of proving that a

record of a Commonwealth agency or local agency is exempt from public access shall be on the

Commonwealth agency or local agency receiving a request by a preponderance of the

evidence.” 65 P.S. § 67.708(a)(1). Preponderance of the evidence has been defined as “such

proof as leads the fact-finder … to find that the existence of a contested fact is more probable than

its nonexistence.” Pa. State Troopers Ass’n v. Scolforo, 18 A.3d 435, 439 (Pa. Commw. Ct. 2011)

(quoting Pa. Dep’t of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821, 827 (Pa.

Commw. Ct. 2010)).

1. The Requester sufficiently appealed the County’s denial

As an initial matter, the County argues that the appeal should be dismissed because the

Requester failed to address the County’s grounds for denial. Section 1101(a)(1) of the RTKL

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requires that the “appeal shall state the grounds upon which the requester asserts that the record is

a public record … and shall address the grounds stated by the agency for delaying or denying the

request.” 65 P.S. § 67.1101(a)(1). In Pa. Dep’t of Corr. v. Office of Open Records, the

Commonwealth Court held that it is “statutorily required that the requester specify in [an] appeal

to the [OOR] the particular defects in an agency’s stated reasons for denying a RTKL request.” 18

A.3d 429 (Pa. Commw. Ct. 2011).

The County denied the “relevant information” sought in the Request on the basis that the

information is not a record of the County. In the Requester’s appeal she states, in pertinent part:

“[w]hile the county granted my request for the names of the seven entities, it denied my request

for the other relevant information submitted by those companies on the grounds that such

information would not constitute records of the [C]ounty. The [C]ounty also denied access because

it does not constitute fiscal records or meeting minutes under the County Code.” Further, she states

that the records are “‘of the [C]ounty’ because they were prepared at the [C]ounty’s direction,

pursuant to its agreement with Stevens & Lee, and because they deal with the ownership of

[C]ounty property.” Additionally, the Requester used the OOR’s standard appeal form, which

contains standard language stating:

By submitting this form, I am appealing the Agency’s denial, partial denial, or


deemed denial because the requested records are public records in the possession,
custody or control of the Agency; the records do not qualify for any exemptions
under § 708 of the RTKL, are not protected by a privilege, and are not exempt under
any Federal or State law or regulation; and the request was sufficiently specific.

See Barnett v. Pa. Dep’t of Public Welfare, 71 A.3d 399, 406 (Pa. Commw. Ct. 2013) (holding

that a statement that records “do not qualify for any exemptions under [S]ection 708, are not

protected by privilege, and are not exempted under any Federal or State law or regulation”

satisfied Section 1101 of the RTKL). Because the OOR’s appeal form largely mirrors the

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Commonwealth Court’s language in Barnett, the use of this form sufficiently addresses an

agency’s grounds for denial, see Phillips and WHYY v. Pa. Dep’t of Envtl. Prot., OOR Dkt. AP

2016-1782, 2017 PA O.O.R.D. LEXIS 222. Further, the Requester has discussed the County’s

denial in an attachment to the OOR’s appeal form. Accordingly, the Requester’s appeal has

sufficiently addressed the County’s grounds for denial.3

2. The Requester did not modify her Request on appeal

Further, the County argues that the Requester modifies her Request on appeal. The County

states that the attachment to the OOR’s standard appeal form discusses a report from Stevens &

Lee regarding the sale of the nursing home that was not discussed in the original Request. A

requester may not modify, explain or expand upon a request on appeal. See Michak v. Pa. Dep’t

of Pub. Welf., 56 A.3d 925, 930 (Pa. Commw. Ct. 2012) (holding that “where a requestor requests

a specific type of record … the requestor may not, on appeal, argue that an agency must instead

disclose a different record in response to the request”); Staley v. Pittsburgh Water and Sewer Auth.,

OOR Dkt. AP 2010-0275, 2010 PA O.O.R.D. LEXIS 256 (“A requester may not modify the

original request as the denial, if any, is premised upon the original request as written”). Therefore,

the OOR’s review on appeal is confined to the Request as written. See, e.g., Hong v. Pa. Dep’t of

Transp., OOR Dkt. AP 2013-0328, 2013 PA O.O.R.D. LEXIS 162.

Here, the Requester appears to be providing a background or history leading up to her

submission of the Request to the County. She is not seeking the report; rather, she states that “this

report contained the names and amounts proposed by entities interested in buying [C]ounty-owned

3
On December 13, 2018, the County sent correspondence to the OOR stating that the appeal has been deemed denied.
However, when the Requester filled out the OOR’s online appeal form, she agreed to allow the OOR an additional
thirty days to issue the Final Determination and indicated her interest in mediation. As provided in the OOR’s Notice
of Appeal, a requester’s interest in mediation will stay the appeal proceedings for seven business days pending the
parties’ decision to enter the OOR Mediation Program. As such, the matter was stayed seven business days, until
October 22, 2018, to provide the County time to determine whether or not to participate in mediation. Accordingly,
the OOR’s Final Determination is due no later than December 21, 2018.

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property. The [C]ounty cannot now claim that they received no information and have no resulting

RTKL obligations…” It appears that the Requester was asserting that the County has possession

of the requested information and that it was improperly withheld by the County. Accordingly, the

Requester did not modify the Request on appeal.4

3. The County Code does not deprive the OOR of jurisdiction over the RTKL
Request in this matter

The County asserts that the OOR lacks jurisdiction over the instant appeal. Specifically,

the County claims that the RTKL is superseded by Section 406 of the County Code. Although the

County Code provides a means for taxpayers to inspect certain records, it does not include any

language stating that a County’s records are not subject to public access under the RTKL. The

County is a local agency under the RTKL. See, e.g., Grine v. County of Centre, 138 A.3d 88, 94

(stating that Centre County “qualifies as a local agency under the RTKL”); Dages v. Carbon

County, 44 A.3d 89 (“[A] local agency, such as [Carbon] County, is required to disclose ‘public

records’ [under the RTKL]”). As such, it is required to provide public records, 65 P.S. § 67.302(a),

and records in the possession of local agencies are presumed to be public records. 65 P.S. §

67.305(a).

Here, the Requester submitted the Request under the RTKL, not the County Code.

Moreover, there is no indication that the responsive records include the County’s fiscal records or

minute books. As such, the OOR retains jurisdiction over this appeal.5 See Orozco and The

Reading Eagle v. Berks County, OOR Dkt. AP 2018-0998, 2018 PA O.O.R.D. LEXIS 776

(determining that the County Code does not apply and the OOR has jurisdiction over a RTKL

4
Because the Request was not modified on appeal to seek the Stevens & Lee report, the OOR need not address the
County’s reasons to withhold the report.
5
The County simultaneously argues both that the County Code governs access to the County’s records sought in the
Request and that the Request does not seek records of the County.

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request denied by the County); see also Hearst Television, Inc. v. Norris, 54 A.3d 23 (Pa. 2011)

(holding that public records may be accessed under both the RTKL and the Coroner’s Act);

Hoffman v. Berks County, OOR Dkt. AP 2017-1888, 2018 PA O.O.R.D. LEXIS 217.

4. The Request seeks records of the County that are in the possession of the
County’s contractor

The County argues that the information submitted by the potential purchasers of the Berks

Heim nursing home does not document a transaction or activity of the County.6 The RTKL defines

a “record” as “[i]nformation, regardless of physical form or characteristics, that documents a

transaction or activity of an agency and that is created, received or retained pursuant to law or in

connection with a transaction, business or activity of the agency.” 65 P.S. § 67.102. The RTKL

imposes a two-part inquiry for determining if certain material is a record: 1) does the material

document a “transaction or activity of an agency?” and 2) if so, was the material “created, received

or retained … in connection with a transaction, business or activity of [an] agency?” See 65 P.S. §

67.102; Allegheny County Dep’t of Admin. Servs. v. A Second Chance, Inc., 13 A.3d 1025, 1034-

35 (Pa. Commw. Ct. 2011). Because the RTKL is remedial legislation, the definition of “record”

must be liberally construed. See A Second Chance, 13 A.3d at 1034; Gingrich v. Pa. Game

Comm’n, No. 1254 C.D. 2011, 2012 Pa. Commw. Unpub. LEXIS 38 at *13 (Pa. Commw. Ct. Jan.

12, 2012) (“[H]ow [can] any request that seeks information … not [be] one that seeks records[?]”).

In A Second Chance, the Commonwealth Court interpreted the word “documents” as

meaning “proves, supports [or] evidences” and held that certain requested information met the first

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The County argues that the Requester has the burden to show that the “information submitted by the potential
purchasers ‘documents’ a ‘transaction or activity’ of the County and that this information has been ‘created, received
or retained … in connection with a transaction, business or activity’ of the County…” However, as stated in Section
1 above, the Requester is merely required to assert that the record is public, not that it documents a transaction or
activity of the agency. Upon the submission of a request to the County, it then must determine whether or not the
record documents a transaction or activity of the agency. Additionally, although not required to do so, the Requester
does provide an argument the records document a transaction or activity of the County, i.e., the proposed sale of its
nursing home.

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part of the definition of a record because it documented the existence of a governmental action. 13

A.3d at 1034. As attested by Mr. Leinbach, Chair of the County Board of Commissioners, the

requested information includes “a printed, 26-page PowerPoint presentation intended to assist the

Board in deliberating whether to sell the Berks Heim….containing the management and

operational experience of the seven entities, the time each entity spent reviewing information in

the ‘data room,’ an analysis of whether each bid conformed to the requirements outlined and a

general summary of each proposal…” It is undisputed that the requested information was

submitted in response to the County’s inquiry regarding the prospective purchasers’ economic

capability to purchase County-owned property should it become available for sale. Thus, the

requested information documents a transaction or activity of the County because it supports the

existence of what is clearly a governmental activity—the County seeking information regarding

the potential sale of County property.

Next, the records must be retained in connection with that governmental activity. Here, the

County asserts that it never received the information, rather only Stevens & Lee gathered the

information. Under the RTKL, two groups of records are accessible—those records in an agency’s

actual or constructive possession reached directly under Section 901 of the RTKL and records in

the possession of third parties that are indirectly accessible through Section 506(d) of the RTKL.

See Pa. Dep't of Pub. Welf. v. Eiseman, 86 A.3d 932, 938-39 (Pa. Commw. Ct. 2014), appeal

granted, 106 A.3d 609 (Pa. 2014). Section 506 of the RTKL provides that:

A public record that is not in the possession of an agency but is in the possession
of a party with whom the agency has contracted to perform a governmental function
on behalf of the agency, and which directly relates to the governmental function
and is not exempt under this act, shall be considered a public record of the agency[.]

65 P.S. § 67.506(d)(1). In Allegheny County Dep’t of Admin. Servs. v. A Second Chance, Inc., the

Commonwealth Court explained that records “in the possession of a party with whom an agency

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has contracted to perform a governmental function on behalf of the agency” are presumptively

public records subject to public access, “so long as the record (a) directly relates to the

governmental function and (b) is not exempt under the RTKL.” 13 A.3d 1025, 1039 (Pa. Commw.

Ct. 2011); see also 65 P.S. § 67.305(a).

It is undisputed that the County contracted with Stevens & Lee to solicit bids for the

County’s potential sale of the Berks Heim nursing home. The question is whether or not Stevens

& Lee has been contracted to perform a governmental function on behalf of the County. The

County argues it is not required by law to operate a nursing home and its operation of the Berks

Heim is a “discretionary governmental function.” Regardless of the validity of that argument, the

sale of, or the solicitation of information to determine whether to sell, County property, whether a

nursing home or other County-owned property, is a governmental function. Stevens & Lee was

contracted to determine whether the sale of County-owned property is in the best interests of the

County; thus, Stevens & Lee was performing a government function on behalf of the County. A

Second Chance, Inc., 61 A.3d at 345 (“[t]he ‘directly relates’ test … focuses on what services are

performed and how they are performed, not who performs them”); Monaco and IBEW Local No.

98 v. Pa. Dep’t of Gen. Servs., OOR Dkt. AP 2015-0826, 2015 PA O.O.R.D. LEXIS 1067; Yakim

v. Municipality of Monroeville, OOR Dkt. AP 2013-1894, 2013 PA O.O.R.D. LEXIS 1150

(finding that “financial expenditures … in furtherance of the provision of emergency services

directly relate to the contracted governmental function”).

Here, the Request seeks records submitted to the County’s contractor regarding the

potential purchase of County-owned property. As a result, the records are directly related to the

government function. Accordingly, because the Request seeks records of the County, and the

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records are available under Section 506(d) of the RTKL, the records must be provided to the

Requester.

5. The County has not proven that information submitted by the potential
purchasers is exempt under Section 708(b)(26) of the RTKL

The County, through the affidavit of Mr. Vind, explains that information submitted by the

seven entities in response to Stevens & Lee’s invitation for non-binding bids concerning the

possibility of purchasing the Berks Heim nursing home. Mr. Leinbach explains that the County is

exploring the possibility of selling the Berks Heim due to projected deficits in operational costs;

and, in determining whether or not to sell the property, the County sought financial information

from potential purchasers. The County asserts that information submitted by the seven entities is

protected by Section 708(b)(26) of the RTKL, which exempts from public disclosure:

A proposal pertaining to agency procurement … of supplies, services or


construction prior to the award of the contract or prior to the opening and rejection
of all bids; financial information of a bidder or offeror requested in an invitation for
bid or request for proposals to demonstrate the bidder’s or offeror’s economic
capability; or the identity of members, notes or other records of an agency proposal
evaluation committees established under 62 Pa.C.S. § 513 (relating to competitive
sealed proposals).

65 P.S. § 67.708(b)(26).

Mr. Vind attests to the types of information the potential purchasers submitted to the

County, including:

a. descriptions of the corporate structure,


b. audited financial statements,
c. licensing information,
d. Commitment to operating as non-profit,
e. information related to management companies,
f. insurance information,
g. types of employee benefits,
h. agreement to hire existing employees subject to current collective bargaining agreements
i. admissions policies,
j. intentions to improve or maintain the quality of care,

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k. five years of the Department of Health’s survey data for facilities operated by potential
purchasers,
l. experiences with community organizations,
m. whether purchase wishes to obtain additional acreage, and
n. the proposed purchase price.

Additionally, Mr. Leinbach attests that the County “has not made a decision as to whether it will

sell the Berks Heim, and, in fact, it is possible that the [County] may decide not to sell the Berks

Heim.”

While Section 708(b)(26) pertains to information submitted in response to a request for

proposals or an invitation for bids, this matter does not involve either scenario. The County

suggests that the information is exempt as “financial information of a bidder or offeror requested

in an invitation for bid or request for proposals to demonstrate the bidder’s or offeror’s economic

capability…” 65 P.S. § 67.708(b)(26).

However, the OOR must narrowly construe exemptions. See Pa. State Police v. Grove, 161

A.3d 877, 992 (Pa. 2017) (“Consistent with the RTKL’s goal of promoting government

transparency and its remedial nature, the exceptions to disclosure of public records must be

narrowly construed”) (citing Office of Governor v. Davis, 122 A.3d 1185, 1191 (Pa. Commw. Ct.

2015). Pursuant to the Statutory Construction Act, in interpreting a statute it is presumed that the

General Assembly does not intend an absurd result, … 1 Pa. C.S. § 1922. However, “[w]hen the

words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded

under the pretext of pursuing its spirit.” See 1 Pa. C.S. § 1921(b); Pa. Dep’t of Corr./State Corr.

Inst.-Somerset v. Workers’ Comp. Appeal Bd. (Kirchner), 805 A.2d 633, 635 (Pa. Commw. Ct.

2002) (stating rules of statutory construction apply to regulations as well as statutes). Here, Section

708(b)(26) is clear and free from ambiguity; and, as a result, because the information requested in

this matter was gathered prior to the issuance of an invitation to bid or request for proposals, i.e.,

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“non-binding bids,” it may not be withheld under Section 708(b)(26). See Pa. Dep’t of Health v.

McKelvey, 2018 Pa. Commw. Unpub. LEXIS 520, at *3, 10-12 (Commw. Ct. Sep. 27, 2018)

(finding that the plain language of a confidentiality regulation made application reviewer

information confidential only with respect to: (i) an applicant for a permit; and (ii) applicants

whose applications have been denied).

Under the RTKL, a statement made under the penalty of perjury is competent evidence to

sustain an agency’s burden of proof. See Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515, 520-21

(Pa. Commw. Ct. 2011); Moore v. Office of Open Records, 992 A.2d 907, 909 (Pa. Commw. Ct.

2010). Based on the evidence, the County has not demonstrated that the information is exempt

from disclosure under Section 708(b)(26) of the RTKL. 65 P.S. § 67.708(a)(1); see also Global

Tel*Link Corp. v. Wright, 147 A.3d 978 (Pa. Commw. Ct. 2016) (In response to a request for

proposal, financial information submitted to demonstrate a bidder’s economic capability to

perform the services is exempt from disclosure).

6. The County has not demonstrated that the information is confidential


proprietary information

The County argues that the information is exempt under Section 708(b)(11) of the RTKL.

Section 708(b)(11) exempts from disclosure “[a] record that constitutes or reveals a trade secret or

confidential proprietary information.” 65 P.S. § 67.708(b)(11). These terms are defined in Section

102 of the RTKL as follows:

‘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.

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65 P.S. § 67.102. An agency or a direct interest participant must establish that both elements of

either these two-part tests are met in order for the exemption to apply. See Office of the Governor

v. Bari, 20 A.3d 634 (Pa. Commw. Ct. 2011). In determining whether certain information is

“confidential,” the OOR considers “the efforts the parties undertook to maintain their secrecy.”

Commonwealth v. Eiseman, 85 A.3d 1117, 1128 (Pa. Commw. Ct. 2014), rev’d in part, Pa. Dep't

of Pub. Welfare v. Eiseman, 125 A.3d 19 (Pa. 2015). “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.” Id.

The County argues that the information contains confidential proprietary information and,

if disclosed, would be used by potential purchasers to gain an advantage in the bidding process.

While the County has treated the submission of information in response to the potential purchase

of the Berks Heim nursing home as confidential, this alone does not make the information

confidential proprietary information. Here, Mr. Vind attests that “the information submitted by

these seven entities is sensitive in nature and, if released, would disrupt the integrity of the

competitive bidding process. This information is only kept secure within my office and is only

accessible to key FS&L personnel.” Based on the evidence provided, the County has not explained

how the disclosure of the information would cause substantial harm to the potential purchasers’

competitive positions, as such has not demonstrated that this information constitutes confidential

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proprietary information.7 Accordingly, the County has not demonstrated the information is exempt

as confidential proprietary information.8

7. The County has not met its burden of establishing that the withheld
information is protected by the constitutional right to privacy

The County also states that the information submitted by the bidders is protected by the

constitutional right to privacy guaranteed by the Pennsylvania and United States Constitutions. In

Pa. State Educ. Ass’n v. Commonwealth, the Pennsylvania Supreme Court held that an individual

possesses a right to privacy in certain types of personal information, including his or her home

address. 148 A.3d 142 (Pa. 2016). When a request for records implicates personal information not

expressly exempt from disclosure under the RTKL, the OOR must balance the individual's interest

in informational privacy with the public’s interest in disclosure and may release the personal

information only when the public benefit outweighs the privacy interest. Id.; see also Pa. State

Univ. v. State Employees’ Retirement Bd., 935 A.2d 530 (Pa. 2007) (employing a balancing test

with respect to home addresses sought under the former Right-to-Know Act). However, in Butler

Area Sch. Dist. v. Pennsylvanians for Union Reform, the Commonwealth Court stated that, “[t]he

constitutional right to informational privacy only inures to individuals. Stated differently,

individuals, as distinct from ‘persons’ (which may include corporations), may assert a privacy

interest under Article I, Section 1.” Id. at 1184-85. Based on Butler, the information here is not

subject to the balancing test, because only individuals are afforded the constitutional right to

privacy. The right to privacy does not apply to any of the corporate or business information sought

in the Request.

7
Whether or not the release of records would “disrupt the integrity of the competitive bidding process” is immaterial
to an analysis under Section 708(b)(11).
8
As noted earlier in this Final Determination, the OOR directed the County to notify any third parties of their ability
to participate in this appeal. The County has not stated if it notified any third parties and the OOR has not received
any requests to participate from third parties.

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CONCLUSION

For the foregoing reasons, Requester’s appeal is granted, and the County is required to

provide the information sought in the Request to the Requester within thirty days. This Final

Determination is binding on all parties. Within thirty days of the mailing date of this Final

Determination, any party may appeal to the Berks County Court of Common Pleas. 65 P.S. §

67.1302(a). All parties must be served with notice of the appeal. The OOR also shall be served

notice and have an opportunity to respond as per Section 1303 of the RTKL. However, as the

quasi-judicial tribunal adjudicating this matter, the OOR is not a proper party to any appeal and

should not be named as a party.9 This Final Determination shall be placed on the OOR website

at: http://openrecords.pa.gov.

FINAL DETERMINATION ISSUED AND MAILED: December 19, 2018

/s/ Jill S. Wolfe


_________________________
APPEALS OFFICER
JILL S. WOLFE, ESQ.

Sent to: Karen Shuey (via email only);


J. Chadwick Schnee, Esq. (via email only);
Maryjo Gibson (via email only)

9
See Padgett v. Pa. State Police, 73 A.3d 644, 648 n.5 (Pa. Commw. Ct. 2013).

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