On January 24, 2018, the Office of Open Records issued a final determination ordering the City of Pittsburgh to turn over to Paul Van Osdol and WTAE-TV a copy of the proposal submitted by the city to Amazon along with other records. Van Osdol had requested a copy of the proposal and various emails between the mayor and his chief of staff and others. The city refused claiming the records were exempt as pre-decisional, deliberative records, trade secrets and/or confidential propriety information, real estate evaluations under § 708(b) (22) and proposals relating to procurement under 708(b) (26). The OOR rejected each of these arguments.

The OOR first analyzed the required tests to satisfy the trade secret and confidential propriety exemptions under the RTKL. In finding that the proposal was not a trade secret, the OOR found that the proposal did not relate to any business or commerce being conducted by the city or county but was for the purpose of attracting business or commerce to the region. The OOR highlighted there is no statutory or case law basis for the proposition that a government agency may possess a trade secret when not engaging in any business or commerce. Citing earlier Commonwealth Court decisions, the OOR held that any trade secret contention ceases the moment the function occurring is governmental and not business or commerce.

The OOR also rejected the confidential propriety claim. The OOR found that to qualify as such the information must “be received by an agency” and that revelation of the information would be found to be of “substantial harm to the competitive position of the person submitting the information.” Although the OOR found that a government agency could be a “person” under the definition, the proposal was not submitted to a government agency but rather formulated and submitted to a third party, non-governmental entity.

The city also argued that the proposal was exempt under 702(b) (22) as a “real estate feasibility estimate and evaluation.” However, the OOR found that it was not the city or county that would be leasing, acquiring or deposing of real property under the proposal, but Amazon, and thus, the exemption did not apply. The OOR equally rejected the claim that the proposal would be exempt under 708(b) (26) as a proposal for the procurement or disposal of supplies, services or construction as once again, it was not the city of county procuring anything, but Amazon ultimately if Pittsburgh was the selected site.

Finally, the OOR rejected the city’s contention that the requested emails were exempt as internal, pre-decisional, deliberative documents. The OOR found that the city failed to submit sufficient evidence demonstrating that the requested records did not contain merely factual information, nor did it directly address how the documents fit under the required three-part test for the pre-deliberative exemption to correctly apply. The OOR found the city’s submitted affidavits to be conclusory and insufficient to justify the exemption.

Any appeal of the decision would be due on or before February 23, 2018.