How should an Open Records Officer deal with a request for third party documents?

Around the state, Open Records Officers (“ORO”) are receiving requests for third party documents. For example, a competitor of a home contractor filed a request for blueprints that were submitted to a township through a building permit application. See Maller v. West Manheim Township, AP 2009-0498 (OOR, July 17, 2009). These types of requests are the result of provisions of the new Right-to-Know Law (“RTKL”) which are designed to increase the transparency of government operations. OROs can take comfort in the fact that the RTKL establishes a clear procedure for dealing with these types of requests.

Third party documents (meaning documents submitted to agencies by third parties in relation to a government transaction, business or activity) are public records. Like other types of public records, third party documents are open to public inspection unless the government agency can prove otherwise. There are limits, however, to the transparency of records in the possession of government agencies. In Maller, the home contractor asked the township to withhold disclosure of the blueprints. He asserted that the blueprints contained trade secrets and that disclosure of the blueprints would cause financial harm to his business.

As an ORO, you may be concerned that disclosure of third party information will allow competitors of government contractors to improperly gain a competitive advantage. While this is a legitimate concern, OROs should limit their anxiety because the RTKL places responsibility on the third party to notify the ORO of this type of information. In fact, the ORO does not even have to notify a third party of a request unless the third party provides a signed, written statement, alleging the document contains a trade secret or confidential proprietary information.

In Maller, the home contractor complied with this provision of the RTKL. Upon submission of the blueprints, he placed a bold-faced disclaimer regarding the confidentiality of the plans. This fact was dispositive in the Office of Open Records final determination, which upheld the township’s denial of the request for the blueprints.

For a list of tips to comply with when facing a request for third party records, email Joshua D. Bonn at jbonn@nssh.com. For more advice on RTKL issues, contact Nauman, Smith, Shissler & Hall at (717) 236-3010, and request to speak with a member of the RTKL practice group.