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FINAL DETERMINATION

IN THE MATTER OF :
:
NICOLE BRAMBILA AND THE :
READING EAGLE, :
Requester :
: Docket No: AP 2018-1208
v. :
:
PENNSYLVANIA DEPARTMENT OF :
HEALTH, :
Respondent :
:
and :
:
GOLDEN GATE NATIONAL SENIOR :
CARE, LLC d/b/a GOLDEN LIVING :
AND SKYLINE HEALTHCARE, LLC, :
Direct Interest Participants :

INTRODUCTION

Nicole Brambila, on behalf of The Reading Eagle (collectively “Requester”), submitted a

request (“Request”) to the Pennsylvania Department of Health (“Department”) pursuant to the

Right-to-Know Law (“RTKL”), 65 P.S. §§ 67.101 et seq., seeking records relating to the

Department’s approval of Skyline Healthcare LLC’s (“Skyline”) license applications submitted to

the Department in connection with the transfer of ownership of Golden LivingCenters (“Golden

Living”) nursing homes. The Department partially denied the Request, arguing, among other
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things, that the records contain confidential proprietary information of a third party. The Requester

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

Determination, the appeal is granted in part, denied in part, and dismissed as moot in part, and

the Department is required to take additional action as directed.

FACTUAL BACKGROUND

On May 7, 2018, the Request was filed, seeking inspection or copies of the following:

1. … [T]he public records the Department … reviewed (as the oversight agency)
before approving Skyline Healthcare’s licensing and certification of several Golden
LivingCenters nursing homes on or about February 1, 2017. (Here is a list of former
Golden Living homes: Phoenixville, Doylestown, Lancaster, Rosemont, Reading
and Stenton [(“Facilities”)]).

2. … [I]nclude the management agreement as well as state documents that spell out
the quality and/or financial criteria used for this approval.
On May 14, 2018, the Department invoked a thirty-day extension to respond to the Request. See

65 P.S. § 67.902(b).1 On June 25, 2018, the Department partially denied Item 1 of the Request by

providing redacted records, arguing that the records contain information that if disclosed would

likely threaten the personal financial security of an individual, 65 P.S. § 67.708(b)(1)(ii), contain

personal identification information, 65 P.S. § 67.708(b)(6), and contain information protected by

the constitutional right to privacy.2 Regarding Item 2 of the Request, the Department denied access

to certain responsive records, arguing that they reflect internal predecisional deliberations, 67 P.S.

§ 67.708(b)(10)(i)(A), and contain confidential proprietary information, 67 P.S. § 67.708(b)(11).

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The Department obtained an additional ten day extension of time to issue a response to the Request until June 25,
2018, by agreement of the Requester.
2
The Requester is not challenging the redactions made to the records provided in response to Item 1 of the Request.
As a result, the Requester has waived any objections regarding the sufficiency of these redactions. See Pa. Dep’t of
Corr. v. Office of Open Records, 18 A.3d 429 (Pa. Commw. Ct. 2011).
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For the records provided to the Requester, the Department imposed a fee of $81.65, comprised of

$71.75 for duplication and $9.90 for postage.

On July 10, 2018,3 the Requester appealed to the OOR, challenging the partial denial of

Item 2 and the copying fees imposed, and stating grounds for disclosure. The OOR invited both

parties to supplement the record and directed the Department to notify any third parties of their

ability to participate in this appeal. See 65 P.S. § 67.1101(c).

On July 13 and 16, 2018, the Department provided notice to Skyline Healthcare and Golden

Living of the pendency of this appeal. On July 19, 2018, the Department submitted a position

statement arguing that the fees were proper, that the Requester is improperly attempting to modify

the Request on appeal, that it has no obligation to provide an exemption log with its final response,

and that the withheld records constitute confidential proprietary information 65 P.S. §

67.708(b)(11) of the third parties. In support of its position, the Department submitted the

attestation, made under penalty of perjury, of Susan Williamson, the Department’s Director of the

Division of Nursing Care Facilities. The Department also attached a copy of its Brief of Amicus

Curiae filed in the matter of Murray v. Pa. Dep’t of Health and Broomall Operating Co., LLP,

currently pending before the Pennsylvania Commonwealth Court.4

Also on July 19, 2018, Golden Living submitted a request to participate in this appeal

pursuant to 65 P.S. § 67.1101(c), which the OOR granted. On August 2, 2018, Golden Living

made a submission arguing that the requested records concern Skyline’s application, thus arguing

that Golden Living’s records should be excluded from production and, further, that the withheld

records are confidential proprietary information. In support of its position, Golden Living

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The Requester granted the OOR an extension of time to issue the Final Determination in this matter until October
26, 2018. See 65 P.S. § 67.1101(b)(1).
4
PA OOR Dkt. AP 2018-0152, 2017 PA O.O.R.D. LEXIS 1532; Pa. Commw. Ct. No. 1685 C.D. 2017.
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submitted the attestation, made under penalty of perjury, of Krista Elmore, licensure specialist for

Golden Living. On July 20, 2018, Skyline submitted a request to participate in this appeal, which

the OOR granted. Skyline did not make a submission on appeal.

Also on July 20, 2018, the Requester submitted a position statement disputing the

Department’s position and requesting that the OOR order the Department to submit an exemption

log. The Requester further disputes that any portion of the responsive records for Item 2 are

exempt from disclosure under the RTKL. In addition, on August 3, 2018, the Requester submitted

a supplemental position statement disputing Golden Living’s position statement. Subsequently,

on August 21, 2018, the Requester requested that the OOR conduct an in camera review of the

responsive records.

On September 27, 2018, in response to the OOR’s request for clarification, the Department

submitted an exemption log identifying and describing the withheld records and indicating the

basis on which the Department asserts the records are exempt from disclosure. In addition, that

same day Golden Living submitted a supplemental position stating that, by way of the

Department’s submission, it identified documents it believes should be withheld. Golden Living

reiterated its position and the Department’s position that the withheld records consist of

confidential proprietary information. Golden Living again relies upon the sworn attestation of Ms.

Elmore to argue that that the records identified in the exemption log are confidential proprietary

information.

On October 2, 2018, the Requester submitted a supplemental position statement in response

to the Department’s exemption log and Golden Living’s supplemental position statement. In

addition, the Requester asserts that the Department has acted in bad faith by not independently

reviewing the records claimed to be confidential proprietary information.

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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

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

Requester requested an in camera review was requested; however, because the OOR has the

requisite information and evidence before it to properly adjudicate the matter, the request for in

camera review is denied.

The Department is a Commonwealth agency subject to the RTKL that is required to

disclose public records. 65 P.S. § 67.301. Records in possession of a Commonwealth 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

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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’s fee challenge is moot

The Requester asserts that the records provided include 124 duplicate copies for which she

was overcharged for copying fees and, because the postage charge was based on weight, that she

was overcharged for postage fees as well, for a total of $31.00. In its position statement, the

Department provided an explanation regarding why it was necessary for duplicates of certain

records to appear within the responsive records provided to the Requester; however, the

Department states that “it had no intent to overcharge and did not engage in a bad faith

determination of copying charges.” The Department further states that it will not challenge the

Requester’s assertion of repetitive documentation and, to that end, “will accept payment in the

amount set forth in the Department’s final letter, less $31.00” and that it “waives the postage fee

in this case.” Accordingly, the appeal is moot as to the Requester’s fee challenge.

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2. The Requester did not improperly modify the Request on appeal

On appeal, the Requester asserts that the records provided by the Department are

incomplete. More specifically, the Requester asserts that the license application requirements

include the attachment of responses to “enclosed Questions and Requested Information for New

Owners of Health Care Facilities in Pennsylvania,” and the submission of federal form CMS-855.

The Requester argues that “the enclosed questions, requested information and responses from

number 5 and the enclosed application for Medicare certification in number 8 … and the CMS-

855 form” were documents that would have been reviewed by the Department during the approval

process, but were missing from the records provided by the Department. The Department argues

that the Requester has impermissibly modified the Request on appeal because it has been expanded

to include records collected by CMS and DHS that are not pertinent to the licensure decision.

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 Request seeks, in pertinent part, “[p]ublic records the Department reviewed …

before approving Skyline Healthcare’s licensing and certification of the following … nursing

homes….” The letter which the Requester references when asserting that certain records were not

included with the records the Department produced was sent to Joseph Schwartz of Skyline, on

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November 4, 2016, “in response to [his] notification of impending change of ownership’s [sic]

for” a list of Golden Living nursing facilities. The letter states that “prior to the effective date of

[the] change, the following documents must be submitted to the Division of Nursing Care

Facilities…,” including the responses to questions enclosed with the letter and the CMS-855 form.

Because the Request seeks the records reviewed by the Department related to Skyline’s license

application and the November 4, 2016 Schwartz letter was identified as responsive, it is reasonable

for the Requester to infer that the responsive records would include the responses to the questions

and the CMS-855 form required by the November 4, 2016 letter. Therefore, by making the

argument that these records were improperly withheld by the Department, the Requester did not

modify the Request on appeal.5

3. The Department demonstrated that certain records are not responsive to the
Request

As explained above, the Requester argues that the Department’s response did not include

certain attachments referenced in a November 4, 2016 letter to Skyline regarding the impending

change of ownership of seven Golden Living facilities. The Requester argues that the Department

should have provided certain attachments, and the Department argues that they did not provide the

CMS-855 form because it is not responsive to the Request. The Department argues that it withheld

form CMS-855 because it is not a record of the Department, but rather, it is a record of the federal

Department of Health and Human Services (“DHHS”), Centers for Medicare and Medicaid

Services (“CMS”) and the Pennsylvania Department of Human Services (“DHS”). The

Department is the State Survey Agency (“SSA”) for CMS and, in this capacity, certain documents

5
Whether the responsive records that the Requester asserts have been improperly withheld are public and subject to
disclosure under the RTKL will be discussed, infra.

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gathered in connection with the nursing home licensing process are passed through to the CMS

and DHS. The Department asserts that the documents it collects and then passes through to CMS

and DHS that are pertinent to Medicare and Medicaid certifications “were not records the

Department reviewed before issuing the licenses in question” because they are “not pertinent to

the Department’s licensure decision.” More specifically, the Department argues that it “does not

act on the CMS forms it collect[s]; [it] serves merely as the pass-through agency.” In support of

the Department’s position, Ms. Williamson attests that she “is responsible for overseeing the

Division [of Nursing Care Facilities (“Division”)], its records, and assisting the Agency Open

Records Officer in responding to Right-to-Know requests….” Ms. Williamson further attests, in

pertinent part, as follows:

3. In my capacity as Director of the Division, I am familiar with the records of the


Division.

4. In order to operate a nursing facility in this Commonwealth, the health care


provider must submit an application for licensure and other information and
documentation as required by the Department.

5. In the event a facility has a change of ownership, the proposed new owner must
submit a new application for licensure to the Department because a license to
operate a health care facility is not transferrable.

6. The standards for issuance of a license are guided by the Health Care Facilities
Act, which include a requirement that the Department is satisfied that the health
care provider is a “responsible person.” 35 P.S. § 448.808….

9. The Department also acts as the State Survey Agency (SSA) for the U.S.
Department of Health and Human Services, Centers for Medicare and Medicaid
Services (CMS) and of the Pennsylvania Department of Human Services (DHS)
pursuant to the requirements set forth in the Social Security Act.

10. As the SSA, the Department is required to collect certain information during
the licensure process that it provides to the CMS, for the purposes of Medicare
certification, and to DHS, the State Medicaid Agency, for purposes of Medicaid
certification. Medicare and Medicaid certification allows a facility to participate in

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Federal Programs and receive reimbursement for services provided to eligible
beneficiaries.

11. The Department does not use information collected in its role as State Survey
Agency for CMS and DHS in the licensure decision-making process.

12. It is the Department, not CMS or DHS, that makes nursing care facility licensure
determinations.

13. It is CMS, not the Department, that makes certification determinations for the
Medicare program.

14. It is DHS, not the Department, that makes certification determinations for the
Medicaid program.

Under the RTKL, an affidavit may serve as sufficient evidentiary support. 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).

Here, the Request seeks “the public records the Department … reviewed (as the oversight

agency) before approving Skyline Healthcare’s licensing and certification of several Golden

Living Centers nursing homes on or about February 1, 2017.” Based on the evidence submitted

by the Department, it has demonstrated that the CMS information collected from Skyline

Healthcare and Golden Living in its role as the SSA are passed through to DHHS and DHS and

are not reviewed by the Department during the process of reviewing the transfer application;

therefore, the records are not responsive to the Request as written. C.f. Murray v. Pa. Dep’t of

Health, OOR Dkt. AP 2017-0461, 2017 PA. O.O.R.D. LEXIS 1361; Murray v. Pa. Dep’t of

Health, OOR Dkt. AP 2017-0152, 2017 PA O.O.R.D. LEXIS 1532 (Department did not prove that

records exchanged between the Department and nursing facility regarding a change of ownership

and collected in capacity of the SSA were not records of the agency).

4. Neither the Department nor the direct interest participants proved that the
withheld records are confidential proprietary information
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The Department and Golden Living both argue that the withheld records constitute

confidential proprietary information. As a preliminary matter, while Golden Living and Skyline

were granted direct interest participant status in this matter, participation in an appeal, by itself,

does not justify the withholding of information. The RTKL provides that a Commonwealth agency

has the burden of proving “by a preponderance of the evidence” that information is exempt from

disclosure. 65 P.S. § 67.708(a)(1). This burden also applies to third parties arguing an exemption.

See Highmark, Inc. v. Voltz, 163 A.3d 485, 490 (Pa. Commw. Ct. 2017) (“The party asserting an

exemption bears the burden of proving the exemption applies”); see also Ullery v. Pa. Dep’t of

Health, PA OOR Dkt. AP 2017-1420, 2018 PA O.O.R.D. LEXIS 77, *19.

Section 708(b)(11) of the RTKL exempts from disclosure “[a] record that constitutes or

reveals a trade secret or confidential proprietary information.” Confidential proprietary

information is defined as “[c]ommercial 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 person that submitted the information.” Id. An agency 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)

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actual competition in the relevant market; and, (2) a likelihood of substantial competitive injury if

the information were released.” Id.

As previously stated, Skyline did not submit evidence on appeal. In support of the

Department’s position regarding the withheld records, Ms. Williamson attests, in pertinent part, as

follows:

7. To determine if the proposed new owner is a “responsible person,” the


Department evaluates the application and all information required to be submitted
with the application, including information and documents it might deem
proprietary.
8. The Department routinely withholds records submitted to the Department in
support of an applicant’s licensure application that are considered and identified by
the applicant as confidential and/or proprietary.
In support of its position, Golden Living relies on the sworn attestation of Ms. Elmore, a

licensure specialist, who attests the following:

3. On February 7, 2017, Golden Living transferred operations of [the Facilities] to


[Skyline] and such transfer involved the execution by the parties of an Operations
Transfer Agreement (“OTA”). Effective as of the same date as the OTA, Golden
Living’s affiliated property owners leased the real property to Skyline Healthcare
LLC and its affiliates.
4. Golden Living still maintains operation of other nursing home facilities in two
other States. Golden Living’s affiliated property owners still own nursing facility
real property in multiple States across the country and are in an active process of
trying to lease some of those properties to third party nursing facility operators.
5. When Golden Living transferred operations of the Facilities to Skyline, Skyline
was required to submit a change of ownership application [“Application”] to [the
Department]…, which was approved by the Department.
6. The Applications submitted by Skyline contain information that is confidential
and not publicly accessible.
7. The Applications contain specific disclosures regarding a range of confidential
and proprietary information, including: (i) the business structure of Golden Living
and its affiliates; (ii) detailed biographical information regarding officers, directors
and key employees; and (iii) the operational support structure of the Facility and
organization.

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8. The Applications contain exhibits and other attachments that describe the manner
in which the Golden Living Facilities obtained services needed to operate the
Facilities and even include actual operating agreements.
9. The Applications also contain other information regarding other Golden Living
Center facilities located throughout the United States.
10. The Applications represent a collection of data and information that third parties
cannot readily obtain from other sources.
11. The market for nursing care facilities is extremely competitive. Golden Living
Center facilities compete against other providers for new residents and patients.
12. In order to stay competitive in obtaining new residents, nursing care facilities
must also compete with one another in (i) hiring and retaining qualified staff and
professional personnel and (ii) obtaining third-party vendor services to aid with
various aspects of a facility’s administrative and clinical operations.
13. Other Golden Living Centers still have significant competition in two States.
14. Public disclosure of the Applications would cause substantial harm to the
competitive position of the organizations whose information is contained in the
Application.
15. Golden Living took great lengths to maintain the confidentiality of the
information that was included in the Applications, such as the legal department
reviewing all requests for release of these agreements. Golden Living also has
objected to the production of confidential documents in legal discovery. On
numerous occasions, Golden Living has filed motions for a protective order in
lawsuits in an effort to limit the disclosure of confidential documents including
leases and OTAs.
16. Golden Living employees are required to abide by applicable non-disclosure
agreements, contractual confidentiality requirements and company privacy
requirements and expectations to maintain the confidentiality of private business
information such as this information.
The OOR directed the parties to submit an exemption log for all of the withheld documents

for which it claims an exemption under the RTKL. The Department provided the exemption log,

which includes the “Type of Document,” “Description of the Document,” “Protected Information”

and “Type of Privilege.” In its supplemental submission, Golden Living states that “[b]y way of

the Department’s supplemental submission…, Golden Living has identified those documents it

believes should be withheld from production under the RTKL.” Review of the log reveals that all
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but four of the records are identified as “Attachments to Licensure Application” and described, as

follows:

• Operating Agreement
• Operations Transfer Agreement
• Executed Bill of Sale to Operations Transfer Agreement
• Assignment and Assumption Agreement
• New Operator Guaranty
• Management Agreement
• Master Lease
• Governance Information/Organization Chart
• Ownership and Control Disclosure
• Ownership Structure
• List of Ownership in Other Facilities
• Operating Agreement
• Response to Department’s Requested “10 Questions”
• Joseph Swartz Personal Resume/Profile & Ownership List of Other Facilities
• Golden Living Facility Listing
• Governance Information/Organization Chart of Other Facilities in Other States
• Operator Bring Down Certificate
• New Operator Bring Down Certificate
• Operator Guaranty
• Subcontract Pending Novation
• Skyline Organizational Charts for Operations in Pennsylvania and other States.

Also listed in the log as confidential proprietary information are the personal resumes of certain

named individuals who appear to be employed by the nursing facilities.

In Murray v. Pa. Dep’t of Health, the requester sought very similar records in connection

with a Golden Living facility’s initial application and annual renewal application submitted to the

Department for approval. The requester in Murray sought, among other things:

[] A copy of all correspondence by and between the Department and the Facility
(and/or the Facility’s owners, agents and/or attorneys), including all attachments
thereto, pertaining to changes in the Facility’s ownership.

[] A copy of all agreements and contracts (including but not limited to management
agreements, lease agreements, administrative services agreements, and other
contracts of any kind) supplied to the Department by the Facility (and/or the

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Facility's owners, agents, and/or attorneys), including all attachments thereto,
during the period of January 1, 2009 through and including the present.

2017 PA O.O.R.D. LEXIS 1361, *3

In Murray, the Department and Golden Living argued that they withheld records that

constitute confidential proprietary information. In support of its position, Golden Living presented

the sworn attestation of a Vice President of Field Services. Notably, the majority of the attestation

paragraphs cited in Murray and are virtually identical to Ms. Elmore’s attestation here, except for

the references the Golden Living facility name and, in Murray, the license application attachments

are referred to as submissions. In particular, Ms. Elmore’s attestation paragraph numbers 6-14 are

virtually identical in content to the attestation paragraph numbers 6-7, 9-15 cited in Murray. Id.

at * 38-39. In Murray, the OOR held that the evidence presented by Golden Living – Lancaster

was too conclusory and insufficient to sustain its burden of proving that the withheld records

consist of confidential, proprietary information. Id. at * 39-41. The OOR specifically held:

While the records may be considered confidential by GLC - Lancaster, GLC -


Lancaster does not address the efforts it took to maintain secrecy of the withheld
records, such as whether its officers, directors and key employees are permitted to
disclose their own biographical information to third parties and if employees must
keep any policies received confidential. Additionally, GLC - Lancaster does not
address how its ownership and structure information and general operating
agreement, general policies, including a discrimination policy and grievance
procedures, as well as the biographical information of its officers, directors and key
employees, would create actual competition in the relevant market and how it
would suffer substantial competitive injury if these records were released. Id. at
*41.

Here, Golden Living included additional evidence in Ms. Elmore’s attestation setting forth

the steps it takes to maintain the confidentiality of the information such as, legal review for release

of agreements and requiring that employees abide by an applicable non-disclosure and

confidentiality agreements. However, similar to Murray, the remainder of the evidence presented

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by Golden Living still does not address how the withheld records, including the ownership and

structure information and general operating agreement, such as the operations transfer agreement,

transfer lease, general policies, as well as the biographical information of its officers, directors and

key employees, would create actual competition in the relevant market and how it would suffer

substantial competitive injury if these records were released. The Commonwealth Court has stated

with regard to the disclosure of a contract that contained third party information claimed to be

confidential and proprietary: “[G]eneralized assertions do not provide the necessary specific

factual basis upon which this Court could conclude that the record in question is exempt from

disclosure under Section 708(b)(11) as either a trade secret or confidential proprietary

information.” West Chester Univ. of Pa. v. Schackner et al., 124 A.3d 382, 393 (Pa. Commw. Ct.

2015) citing Commonwealth v. Eiseman, 85 A.3d 1117, 1130 rev’d in part, Pa. Dep’t of Pub. Welf.

v. Eiseman,, 125 A.3d 19 (Pa. 2015) (“[A] potentially weaker negotiating position does not

establish trade secret status,” and “[a]lthough the court need not conduct a sophisticated economic

analysis of the likely effects of disclosure[,] ... conclusory and generalized allegations of

substantial competitive harm ... are unacceptable and cannot support an agency’s decision to

withhold requested documents”) (citation omitted).

In addition, the records at issue relate to the application of Skyline and, although the

exemption log identifies the attachments to Skyline’s licensure application as confidential

proprietary information, review of the record shows that no evidence has been presented to

distinguish between Skyline’s records and Golden Living’s records. Notably, Golden Living

specifically makes the argument that “the point of [the Request] is to determine [the Department’s]

process for approving Skyline as a nursing home facility[]” and “since the thrust of this request is

directed at Skyline, the [OOR] should deny [the appeal] as it pertains to any Golden Living

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documents.” However, based on a review of Golden Living’s position statement, the exemption

log and Ms. Elmore’s attestation, Golden Living has not presented evidence to distinguish between

its records and Skyline’s records, and Skyline did not submit evidence on appeal.

While Golden Living suggests that the release of the withheld documents identified in the

exemption log could cause substantial harm to Golden Living’s competitive position in the nursing

home industry with respect to its continued operations elsewhere in the United States, the

conclusory statements are insufficient to demonstrate that the withheld material consists of

confidential proprietary information. As noted above, a statement made under the penalty of

perjury is competent evidence to sustain an agency’s burden of proof under the RTKL. See Sherry,

20 A.3d at 520-21; Moore, 992 A.2d at 909; however, conclusory statements are not sufficient to

meet an agency’s burden of proof. See Scolforo, 65 A.3d at 1103 (“[A] generic determination or

conclusory statements are not sufficient to justify the exemption of public records”); see also

Murray, 2017 PA O.O.R.D. LEXIS 1532, *31; c.f. McKelvey v. Pa. Dep’t of Health, PA OOR

Dkt. AP 2017-1443, 2018 PA O.O.R.D. LEXIS 72 (finding that a medical marijuana dispensary

provided non-conclusory evidence to demonstrate that formulas, methods, processes and

techniques have independent economic value, but did not provide non-conclusory evidence to

demonstrate that financial information attached to license application consists of confidential,

proprietary information).

Under the RTKL, agencies and direct interest participants are tasked with meeting their

burden of proof, see 65 P.S. § 67.708(a)(1). Golden Living has not done so here. The conclusory

statements in Golden Living’s position statement and exemption log are not sufficient to meet its

burden of proof. While the OOR understands that Golden Living operates in a competitive

business, and that it treats its information as confidential, it is incumbent on Golden Living to

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explain to the OOR what attachments to Skyline’s licensure application are records specific to

Golden Living and how those records are confidential proprietary information. Golden Living’s

position statement discusses the documents it purports to be confidential and proprietary in only

general terms, and the exemption log is too conclusory to support a finding of confidential

proprietary information. As a result, neither the Department nor Golden Living has met its burden

of proof to withhold this information.

5. The Department has not demonstrated that withheld records reflect


internal, predecisional deliberations of the Department
The Department generally argues that the documents it reviews as part of its licensure

determination assist the Department in making certain legal determinations during the review

process; therefore, the Department asserts that the responsive records withheld reflect internal,

predecisional deliberations of the Department and are exempt from disclosure under 65 P.S. §

67.708(b)(10)(i)(A). The Requester argues that the documentation submitted in connection with

Skyline’s licensure application are not “deliberative in nature because these records do not reflect

[D]epartment staff or officials deliberating on a budget recommendation legislative proposal or

amendment, nor do these documents reflect a contemplated or proposed policy or course of action

or any research, nor are the records agency memos.”

The Department identifies the following documents on the exemption log as reflecting

exempt predecisional, deliberative internal communications: Bates No. 048 “Internal

Memorandum” (Stenton); Bates No. 199 “Internal Memorandum” (Lansdale); Bates No. 249

“Subject Letter for Applications” (Doylestown); Bates Nos. 276-278 “Response to Department’s

Requested ‘10 Questions’ (Lancaster); Bates No. 284 “Internal Memorandum” (Phoenixville);

Bates Nos. 291-297 “Response to Department’s Requested ‘10 Questions’ (Lansdale); Bates Nos.

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295-301 “Response to Department’s Requested ‘10 Questions’ (Doylestown); Bates No. 335

“Internal Memorandum” (Reading); and, Bates No. 323 “Internal Memorandum” (Lancaster).6

Section 708(b)(10)(i)(A) of the RTKL exempts from disclosure records reflecting:

[t]he internal, predecisional deliberations of an agency, its members, employees or


officials or predecisional deliberations between agency members, employees or
officials and members, employees or officials of another agency, including
predecisional deliberations relating to a budget recommendation, legislative
proposal, legislative amendment, contemplated or proposed policy or course of
action or any research, memos or other documents used in the predecisional
deliberations.

65 P.S. § 67.708(b)(10)(i)(A). To withhold a record under Section 708(b)(10)(i)(A), an agency

must show: 1) the deliberations reflected are internal to the agency, including representatives; 2)

the deliberations reflected are predecisional, i.e., before a decision on an action; and 3) the contents

are deliberative in character, i.e., pertaining to a proposed action. See Kaplin v. Lower Merion

Twp., 19 A.3d 1209, 1214 (Pa. Commw. Ct. 2011).

To be deliberative in nature, a record must make recommendations or express opinions on

legal or policy matters and cannot be purely factual in nature. Kaplin, 19 A.3d at 1214. Factual

material contained in otherwise deliberative documents is required to be disclosed if it is severable

from its context. McGowan v. Pa. Dep’t of Envtl. Prot., 103 A.3d 374, 382-83 (Pa. Commw. Ct.

2014). However, factual material can still qualify as deliberative information if its “disclosure

would so expose the deliberative process within an agency that it must be deemed excepted”; or

in other words, when disclosure of the factual material “would be tantamount to the publication of

6
In the exemption log, the Department separately identifies the records for each Golden Living facility; however, it
begins the Bates numbering for each facility with 001 resulting in duplicate Bates numbers throughout the exemption
log. For clarity, when referencing individual records in this Final Determination, we have included the Bates number
and facility name.

19
the [agency’s] evaluation and analysis.” Id. at 387-88 (citing Trentadue v. Integrity

Communication, 501 F.3d 1215, 1228-29 (10th Cir. 2007)).

Here, the only evidence addressing this exemption submitted by the Department is Ms.

Williamson’s attestation that “[t]o determine if the proposed new owner is a ‘responsible person,’

the Department evaluates the application and all information and documents to be submitted with

the application, including information and documents it may deems proprietary.” Regarding the

records identified on the exemption log as internal communications, the Department merely

provides generic descriptions such as “internal memorandum” and “subject letter for applications,”

without any additional details in the form of sworn factual evidence in support of the exemption.

Finally, some records listed on the exemption log are identified as “Confidential to the Third Party”

and “Internal Deliberations.” However, to be exempt under Section 708(b)(10)(i)(A), the record

must be internal to the agency and, logically, if a record belongs to a third party, it cannot also be

internal to the agency. Kaplin, 19 A.3d at 1216; see also Smith ex rel. Smith Butz, LLC v. Pa. Dep’t

of Envtl. Prot., 161 A.3d 1049, 1067 (Pa. Commw. Ct. 2017) (“Records are considered ‘internal’

when they are maintained internal to one agency or among governmental agencies”).

As noted above, a statement made under the penalty of perjury is competent evidence to

sustain an agency’s burden of proof under the RTKL. See Sherry, 20 A.3d at 520-21; Moore, 992

A.2d at 909. However, conclusory statements are not sufficient to meet an agency’s burden of

proof. See Scolforo, 65 A.3d at 1103 (“[A] generic determination or conclusory statements are not

sufficient to justify the exemption of public records”). Here, Ms. Williamson’s attestation that,

“the Department evaluates the application and all information and documents to be submitted with

the application,” is not sufficient to meet the Department’s burden of proving that the records

20
reflect internal, predecisional deliberations under Section 708(b)(10)(i)(A) of the RTKL. See 65

P.S. § 67.708(a)(1).

6. The Department has not established that certain records are protected by the
attorney-client privilege

Review of the exemption log also shows that documents designated by Bates Nos. 109-123

“Operating Agreement” (Rosemont) and Bates No. 109 “Rosie Schwartz Profile” (Stenton) were

withheld at the request of the third party claiming the attorney-client privilege. In order for the

attorney-client privilege to apply, a party must demonstrate that: 1) the asserted holder of the

privilege is or sought to become a client; 2) the person to whom the communication was made is

a member of the bar of a court, or his subordinate; 3) the communication relates to a fact of which

the attorney was informed by his client, without the presence of strangers, for the purpose of

securing either an opinion of law, legal services or assistance in a legal matter, and not for the

purpose of committing a crime or tort; and 4) the privilege has been claimed and is not waived by

the client. See Nationwide Mut. Ins. Co. v. Fleming, 924 A.2d 1259, 1263-64 (Pa. Super. Ct. 2007).

“[A]fter an agency establishes the privilege was properly invoked under the first three prongs, the

party challenging invocation of the privilege must prove waiver under the fourth prong.” Office

of the Governor v. Davis, 122 A.3d 1185, 1192 (Pa. Commw. Ct. 2014) (citing Id.). However, a

party may not rely on a bald assertion that the attorney-client privilege applies; instead, the party

must prove all four elements. See Clement v. Berks County, OOR Dkt. AP 2011-0110, 2011 PA

O.O.R.D. LEXIS 139 (“Simply invoking the phrase ‘attorney-client privilege’ or ‘legal advice’

does not excuse the agency from the burden it must meet to withhold records”).

Review of the record reveals that neither the Department nor Golden Living submitted any

evidence in support of its claim that certain records may be withheld based on the attorney-client

21
privilege. Accordingly, the Department has not proven that Bates Nos. 109-123 “Operating

Agreement” (Rosemont) and Bates No. 109 “Rosie Schwartz Profile” (Stenton) are privileged.

See 65 P.S. § 67.305.

7. The OOR declines to make a finding of bad faith

The Requester asks the OOR to make a finding of bad faith. More specifically, the

Requester argues that it is the Department’s “responsibility to locate all responsive records and

determine whether those records are subject to disclosure under [the RTKL] and that the

Department did not review the records withheld pursuant to Section 708(b)(11) of the RTKL. The

Requester asserts that the failure to conduct a good faith review of records amounts to “an

abdication of the [D]epartment’s responsibility to review and determine what is subject to release

under … [the] RTKL…” and the “withheld [documents] should have been independently reviewed

by the [Department] to determine whether the third-party … claim” of confidential proprietary

records is valid. The Requester further asserts that “section 707 does not allow agencies to

outsource their legal responsibilities to determine the public/non-public nature of requested

records.”

Although the OOR may make findings of bad faith, only the courts have the authority to

impose sanctions on agencies. See generally 65 P.S. § 67.1304(a) (noting that a court “may award

reasonable attorney fees and costs of litigation … if the court finds … the agency receiving the …

request willfully or with wanton disregard deprived the requester of access to a public record …

or otherwise acted in bad faith...”); 65 P.S. § 67.1305(a) (“A court may impose a civil penalty of

not more than $1,500 if an agency denied access to a public record in bad faith”).

22
In instances where a third party has provided a written statement that the requested record

contains a trade secret or confidential proprietary information, Section 707(b) of the RTKL

provides a procedure wherein:

Notification shall be provided within five business days of receipt of the request for
the record. The third party shall have five business days from receipt of notification
from the agency to provide input on the release of the record. The agency shall deny
the request for the record or release the record within ten business days of the
provision of notice to the third party and shall notify the third party of the decision.
65 P.S. § 67.707(b) (emphasis added).

Therefore, while Section 707 requires an agency to consult with third parties regarding

their claims of trade secrets or confidential proprietary information, Section 707 also permits

agencies to deny those claims when they are not made in good faith. Compare 65 P.S. § 67.901,

with 65 P.S. § 67.707.

Here, the Department acted in accordance with Section 707 of the RTKL by providing

Golden Living and Skyline notice of the appeal and both third parties were granted the ability to

participate as a direct interest participant. Ms. Williamson attests on behalf of the Department

that:

7. To determine if the proposed new owner is a “responsible person,” the


Department evaluates the application and all information and documents that are
required and identified by the applicant as confidential and/or proprietary.

8. The Department “routinely withholds records submitted to the Department in


support of the applicant’s licensure application that are considered and identified
by the applicant as confidential and/or proprietary.
In its position statement, the Department explains that “[e]ven though there is an agreement when

the documents are supplied [by an applicant] that they are proprietary and confidential and will be

maintained by the Department as such, I advise that if the assertion made on their behalf is

challenged, they must support that position taken on their behalf on appeal to the OOR.”

23
At the OOR’s direction, the Department created the exemption log of the withheld

documents listing the type and description of each document. According to the log, the

information at issue in all except four records was withheld at the request of a third party pursuant

to Section 707 of the RTKL, 65 P.S. § 67.707. It is reasonable to infer that because the Department

produced the exemption log, which contains a listing of the types of documents at issue and a

general description of each, it has reviewed the withheld records. Further, in light of the

Commonwealth Court’s recognition of a third party’s interest in protecting its records, especially

those containing trade secrets and confidential proprietary information, the Department’s reliance

on that precedent does not constitute bad faith. Therefore, to the extent the Requester argues that

the Department acted in bad faith, the OOR declines to make such a finding in this case. See

generally 65 P.S. § 67.1304(a); 65 P.S. § 67.1305(a); McKelvey, supra.

CONCLUSION

For the foregoing reasons, the Requester’s appeal is granted in part, denied in part, and

dismissed as moot in part, and the Department is required to provide all responsive records

identified in the exemption log 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 Commonwealth Court. 65 P.S. § 67.1301(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,

24
the OOR is not a proper party to any appeal and should not be named as a party. 7 This Final

Determination shall be placed on the OOR website at: http://openrecords.pa.gov.

FINAL DETERMINATION ISSUED AND MAILED: October 25, 2018

/s/ Kelly C. Isenberg


_________________________
APPEALS OFFICER
KELLY C. ISENBERG, ESQ.

Sent to: Nicole Brambila (via email only);


Karin Simpson, Esq. (via email only);
Jacqueline Carolan, Esq. (via email only);
Lisa Keefer, AORO (via email only)

7
See Padgett v. Pa. State Police, 73 A.3d 644, 648 n.5 (Pa. Commw. Ct. 2013).

25