Medical marijuana and trade secrets were the hottest issues under the Pennsylvania Right-to-Know Law (RTKL) in 2019.  Since the General Assembly legalized medical marijuana in 2016, the Commonwealth Court has issued several pro-transparency rulings allowing public oversight of this emerging industry.  The most comprehensive opinion addressing these issues, Mission Pennsylvania, LLC v. McKelvey, is the top case of the year.  The Pennsylvania Supreme Court has already agreed to review this decision.  The case provides a roadmap for private businesses to protect trade secrets and confidential/proprietary information when engaged in business with public entities.

Courts continued to grapple with the recently recognized right to informational privacy.  Courts in 2020 will balance if the right to privacy precludes disclosure of: (i) student emails on university email servers, and (ii) names and addresses of donors to the City of Harrisburg’s legal defense fund for its firearms ordinance.  Agencies continued to struggle with the Supreme Court’s silence on when and how to provide notice to interested parties in a practical and cost-effective manner.

Other interesting issues include the public status of corporate donations to public universities, police surveillance videos, and records of volunteer fire companies.  Without further ado, here is our list of the top ten most significant RTKL cases of 2019.

  1. Mission Pennsylvania, LLC v. McKelvey, 212 A.3d 119 (Pa. Commw. 2019) (opinion by Simpson, J.; joined by Leavitt, P.J.; Cohn Jubelirer, J.; Brobson, J.; Wojcik, J.; Fizzano; Cannon, J., Ceisler, J.).*

Applications for medical marijuana grower/processor permits are public records subject to minimal redaction to protect facility security and trade secrets.  The Pennsylvania Supreme Court has agreed to review the following issues:

i. Should this Court grant allocator in this case of first impression and of substantial public importance and reverse the Commonwealth Court’s opinion below because the opinion fails to protect building security in the valuable medical marijuana industry, does not create a workable standard for dealing with iterative redactions in the absences of statutory guidance, and fails to provide a standard for dealing with similarly situated applicants who achieved varying degrees of success on the same record?

ii. In considering whether financial information submitted in a medical marijuana application was “confidential and proprietary,” whether the Commonwealth Court erred in disregarding substantial evidence of “competitive harm” and of the significant security issues associated with disclosure of financial information in a unique cash-based business?

iii. Should this Court grant allocatur in this case of first impression concerning a matter of substantial public importance because the opinion below treated similarly situated applicants on the same record with varying degrees of success, and alternatively, did not exercise its discretion to remand for further fact finding?

  1. Finnerty v. Pennsylvania Dep’t of Cmty. & Econ. Dev., 208 A.3d 178 (Pa. Commw. 2019) (opinion by Cohn Jubelirer, J; joined by McCullough, J. and Leadbetter, J.).

 The predecisional deliberation exemption extends to independent contractors.  The Pennsylvania Supreme Court has agreed to review the following issues:

i. Whether the Commonwealth Court erred in extending the internal, pre-decisional deliberative exception under Section 708(b)(10)(i) of the RTKL to public information shared with agency subcontractors having no direct or proper contractual relationship with the agency?

ii. Whether the Commonwealth Court erred in mooting Petitioner’s objections to the assertion of the attorney client privilege and attorney work product as a result of an unsolicited eleventh-hour production, without consideration for the issue’s repetition and public importance as it relates to the production of public information under RTKL?

  1. City of Harrisburg v. Prince, 219 A.3d 602 (Pa. 2019) (opinion by Donanhue, J.; joined by Saylor, C.J.; Baer, J.; Todd, J.; Dougherty, J.; Wecht, J.; and Mundy, J.)

The Pennsylvania Supreme Court ruled that a list of names and addresses of individuals who donated money to City’s legal defense fund for firearms ordinance is a financial record subject to disclosure under RTKL; but the right to privacy may still preclude disclosure of names and addresses; remanded to lower court to notify individuals and conduct constitutional balancing test.

  1. West Chester Univ. of Pennsylvania v. Rodriguez, 216 A.3d 503 (Pa. Commw. 2019) (opinion by Brobson, J.; joined by Covey, J. and Fizzano Cannon, J.).

 Student emails stored on university email server may be subject to right to constitutional privacy but were not education records under FERPA.

  1. Borough of Pottstown v. Suber-Aponte, 202 A.3d 173 (Pa. Commw. 2019) (opinion by Covey, J.; joined by Wojcik, J., and Leadbetter, J.).

Portion of police department video footage exempt under personal security, public safety and building security exemptions; video footage of public areas not protected; video footage of non-public areas not entirely exempt under investigation exemptions; remanded for further factual development.

  1. California Univ. of Pennsylvania v. Bradshaw, 210 A.3d 1134 (Pa. Commw. 2019) (opinion by Brobson, J.; joined by McCullough, J. and Wojcik, J.).

  RTKL’s donor exemption does not apply to corporations.

  1. Pysher v. Clinton Twp. Volunteer Fire Co., 209 A.3d 1116 (Pa. Commw. 2019) (opinion by Cohn Jubelirer, J.; joined by Covey, J.; Ceisler, J. filed opinion concurring in part and dissenting in part).

Establishes test to determine if fire department is local agency; test balances degree of governmental control, the nature of the fire department’s functions, and the financial control by municipality over fire department.

  1. Crocco v. Pennsylvania Dep’t of Health, 214 A.3d 316 (Pa. Commw. 2019) (opinion by Simpson, J.; joined by Leavitt, P.J. and Ceisler, J.).

Names and license numbers of health care practitioners and leadership of abortion facilities exempt from public disclosure under personal security exemption, 65 P.S. § 67.708(b)(1)(ii), and Abortion Control Act, 18 Pa. C.S. § 3214(e)(2).

  1. Kutztown Univ. of Pennsylvania v. Bollinger, No. 5 C.D. 2019, 2019 WL 4390513 (Pa. Commw. Sept. 13, 2019) (memorandum opinion by Brobson, J.; joined by Cohn Jubelirer, J. and Fizzano Cannon, J.).

Vacating OOR final determination on grounds that appeal should have been dismissed as moot after agency provided responsive record; requester could not challenge redaction of information that was non-responsive to request.

  1. Cluck v. Dep’t of Conservation & Nat. Res., No. 1683 C.D. 2018, 2019 WL 5448685, (Pa. Commw. Oct. 24, 2019) (memorandum opinion by Brobson, J.; joined by Leavitt, P.J. and McCullough, J.).

Treasure hunting records are public.

Honorable Mention:  County of Berks v. Pennsylvania Office of Open Records, No. 170 M.D. 2018, 2019 WL 81861 (Pa. Commw. Jan. 3, 2019) (memorandum opinion by Colins, S.J.).  Transferring County’s Petition for Review to Court of Common Pleas; county records are subject to access under RTKL not County Code.  16 P.S. § 406.

*Nauman Smith’s RTKL practice group represented parties in these appeals.