IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Matthew Scot Payne, :
Petitioner :
:
v. : No. 579 C.D. 2019
: ARGUED: December 12, 2019
Pennsylvania Department of Health, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY
SENIOR JUDGE LEADBETTER FILED: September 15, 2020
Matthew Scot Payne, Esq. (Requester), petitions for review from the
Final Determination of the Office of Open Records (OOR) upholding the
Pennsylvania Department of Health’s denial of his Request for Documents. The
request sought scores given by the Department’s Office of Medical Marijuana (MM
Office) to an application for a medical marijuana grower-processor permit submitted
by BCI2, LLC (BCI21) (Applicant No. GP18-5006). Currently at issue is whether
the scores are shielded from disclosure under the Right-to-Know Law2 (RTKL) by
the predecisional deliberations exemption found at Section 708(b)(10)(i)(A), 65 P.S.
§ 67.708(b)(10)(i)(A), thereof and/or the MM Office’s temporary regulation at 28
1
At several junctures in the record, BCI2 is referred to as “BC12.” (See, e.g., OOR Final
Determination, Reproduced Record “R.R.” at 88a, 91a, 95a.)
2
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101–67.3104.
Pa. Code § 1141.22(b)(11) concerning records subject to disclosure and
confidentiality under the RTKL. For the reasons that follow, we reverse.
The background of this matter is as follows: BCI2 filed an application
for a medical marijuana grower-processor permit which was rejected by the
Department on the ground that the application was incomplete because it lacked a
signature on one document. On February 7, 2019, an administrative hearing was
held concerning BCI2’s claim that the Medical Marijuana Act3 required the
Department to give BCI2 an opportunity to cure the defect before denying its permit.
During that hearing, Sunny Podolak, the MM Office’s Chief Compliance Officer,
testified that its review of such applications entailed a four-stage process. During
the third or evaluation stage, a committee of experts would give the application
preliminary scores in various categories. Thereafter, a different group, comprising
employees from the MM Office, would conduct the permitting phase, where:
[W]e reviewed all applications again. We did another in-
depth dive to see if anything was in fact going to be
deemed incomplete, and at that point, if something, if one
of the applications was incomplete, their [sic] preliminary
score would be voided and that application would then be
rejected.
Any of the applications that were complete, we would take
a look at those preliminary scores and put those in
numerical order, and we would then award the top scores.
(Reproduced Record “R.R.” at 26a.) Following the hearing, Requester, an attorney
for BCI2, filed a RTKL request on its behalf, as rephrased in its submission to the
OOR, seeking:
[D]ocuments referring to, reflecting, [. . .] or evidencing
any and all scores given to the whole of and/or any
3
Act of April 17, 2016, P.L. 84, 35 P.S. §§ 10231.101 – 10231.2110.
2
constituent part of the medical marijuana grower-
processor permit application submitted by [BCI2].
(R.R. at 17a.) The Department denied the Request on grounds, inter alia, that the
requested “scoring notes and materials” were exempted from disclosure by the
above-mentioned provisions of the RTKL and the temporary regulation. (R.R. at
12a-14a.)4
Requester timely appealed the Department’s denial of the Request to
the OOR, submitting redacted excerpts of Ms. Podolak’s testimony during the
hearing on the administrative challenge. The OOR invited both parties to
supplement the record and directed the Department to notify any third parties of their
ability to participate in the appeal.
On March 25, 2019, Requester submitted a position statement, arguing
that the requested records were neither predecisional nor deliberative and could not,
therefore, be exempt under the predecisional deliberations exemption of the RTKL.5
4
A note of clarification is in order regarding the differentiation between “score” (singular)
and “scores” (plural) which are not uniformly used to describe the same things. The testimony
and Ms. Podolak’s subsequent Affidavit both refer to “scores” assigned during the penultimate
stage of the permitting process by an evaluation committee of subject-matter experts; the score
sheet includes a set of scores assigned to various characteristics of the application, apparently
reached by combining the scores of the evaluation committee members by some process not
described in the record; the singular “preliminary score” is the sum of the scores on the score card,
which the evaluation committee computes [see Department’s Br. at 15 (“a preliminary score is
generated prior to the permitting stage”) (citing R.R. at 84a)]; and the singular “final score” is what
the permitting committee would rank from an application deemed complete against other complete
applications in the last stage of the process. It is not clear from either the testimony or from the
Affidavit whether the evaluation committee’s preliminary scores were ever changed in the
permitting stage. In light of the fact that BCI2 never received any score(s) during permitting and
in light of our analysis here, that information is of no significance.
5
In both the appeal to OOR and his position statement, Requester focused on the portion of
his Request concerning scores rather than “all documents . . . relating to.” (See R.R. at 17a, 48a.)
3
The Requester further argued that the temporary regulation did not apply because
the records he had requested document the work of a committee and not an
individual. The Department submitted a position statement, reiterating its grounds
for denial, as well as a sworn Affidavit by Ms. Podolak which restated her account
of the four-stage process in less concrete detail than her earlier testimony. (R.R. at
81a-84a.)
In April 2019, an appeals officer of the OOR issued the Final
Determination, agreeing that the requested documents reflected the predecisional
deliberations of the Department and were, therefore, exempt from disclosure.
Requester then filed the instant petition for review.
On appeal,6 Requester raises six issues, which may be paraphrased for
the sake of conciseness as follows:7
(1) Whether the Affidavit was insufficiently detailed, was
conclusory, and/or was submitted in bad faith so that the
averments therein should be questioned and not accepted
as true.
(2) Whether the preliminary score given by the evaluation
committee to the application of BCI2 was not deliberative
or predecisional as is meant in the context of the
predecisional deliberations exemption.
(3) Whether the Department failed to prove by a
preponderance of the evidence that the predecisional
deliberations exemption bars the release of documents
responsive to the Request.
6
In an appeal under the RTKL from a final determination of the OOR, the review exercised
by this Court is plenary with respect to both questions of fact and law. This Court reviews the
OOR’s orders independently and may substitute its own findings of fact for those of the OOR.
Bowling v. Office of Open Records, 75 A.3d 453 (Pa. 2013).
7
For ease of discussion, we have also renumbered the issues as one through six, where
Requester had listed them as issues (A) through (F).
4
(4) Whether requested documents containing both
information exempted under the predecisional
deliberations exemption and the score(s) given by the
evaluation committee should be produced with only
exempted information redacted.
(5) Whether the preliminary score given by the evaluation
committee was the work of the committee as a whole, and
was not an individual permit application review and/or
were not notes protected from disclosure by the temporary
regulation.
(6) Whether the requested documents containing both
information protected from disclosure by the temporary
regulation and the score given by the evaluation
committee should be produced with only the protected
information redacted.
(Requester’s Br. at 17-18.)
The Predecisional Deliberations Exemption
When resolving disputes regarding the disclosure of government
records under the RTKL, agencies and reviewing courts must begin from a
presumption of transparency. Am. Civil Liberties Union v. Pa. State Police, ____
A.3d ____, ____ (Pa., No. 66 MAP 2018, filed June 16, 2020) (ACLU), slip op. at
2. Statutory exceptions must be construed strictly, lest they subvert the RTKL’s
purpose. Id. Section 305(a) of the RTKL provides that records in possession of a
Commonwealth agency are presumed public unless they are (1) exempted by Section
708 of the RTKL; (2) protected by a privilege; or (3) exempted under any other
federal or state law, regulation, or judicial order or decree. 65 P.S. § 67.305(a).
Under Section 708(a)(1) of the RTKL, “[t]he burden of proving that a record of a
Commonwealth agency or local agency is exempt from public access shall be on the
5
Commonwealth agency or local agency receiving a request by a preponderance of
the evidence.” 65 P.S. § 67.708(a)(1).
The RTKL’s predecisional deliberations exemption provides, in
relevant part, as follows:
[T]he following are exempt from access by a requester
under [the RTKL]:
....
The 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
. . . 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). Thus, in order to establish the applicability of the
predecisional deliberations exception, an agency is required to show that the
information is: (1) internal; (2) prior to agency decision or course of action; and (3)
deliberative in character. Twp. of Worcester v. Office of Open Records, 129 A.3d
44, 61 (Pa. Cmwlth. 2016).
Because Requester’s first three arguments involve interrelated
questions concerning the adequacy of the Affidavit to establish this exemption, we
address those issues together. One method an agency may use in meeting the burden
of proof that a record is exempt is testimonial affidavits, which if “found to be
relevant and credible may provide sufficient evidence in support of a claimed
exemption.” McGowan v. Pa. Dep’t of Envtl. Prot., 103 A.3d 374, 381 (Pa. Cmwlth.
2014) [quoting Heavens v. Pa. Dep’t of Envtl. Prot., 65 A.3d 1069, 1073 (Pa.
Cmwlth. 2013)]. Such “affidavits must be detailed, nonconclusory, and submitted
in good faith.” Office of the Governor v. Scolforo, 65 A.3d 1095, 1103 (Pa. Cmwlth.
6
2013). In the context of the predecisional deliberations exemption, the agency’s
affidavit “must be specific enough to permit the OOR or this Court to ascertain how
disclosure of the [record] would reflect the internal deliberations.” Id. at 1104.
In this case, Ms. Podolak’s Affidavit briefly describes the four-stage
process for reviewing applications: intake, assessment, evaluation, and permitting.
As stated above, of relevance to this dispute are the descriptions of the evaluation
and permitting stages. According to the Affidavit, “[d]uring the evaluation phase,
each evaluation committee member reviews the applications for content and quality
and provides their [sic] preliminary scores” and “[a]ll work completed during the
evaluation phase is used during the permitting phase.” (Affidavit ¶¶ 10 and 13; R.R.
at 83a.) Further, “[t]he work completed [and] the notes generated, are instructive
and aids [sic] in the final review process, the permitting phase.” (Affidavit ¶ 13;
R.R. at 83a.) During the permitting phase, the MM Office reviews all applications
and “[i]mportantly, the [MM] Office does not meet in total to review all applications
and preliminary [sic] provide scores until the permitting phase. All work done by
the evaluation committee during the evaluation phase is reviewed at the permitting
phase.” (Affidavit ¶ 16; R.R. at 83a.) “If an application is deemed incomplete[,]
then any preliminary scores and notes are voided and the application is rejected.”
(Affidavit ¶ 17; R.R. at 84a.) Although BCI2 “received preliminary scores from
each evaluation committee member, said scores were predecisional in nature.
Specifically, said scores were internal to the [MM] Office as they were created by
the evaluation committee before final review of all applications during the
permitting phase.” (Affidavit ¶ 19; R.R. at 84a.) “[T]he preliminary scores were
generated before a decision needed to be made on the application” and were “created
by the evaluation committee prior to the permitting phase.” (Affidavit ¶ 20; R.R. at
84a.) Such preliminary scores were “unofficial” and “merely notes generated by the
evaluation committee members reviewing the applications.” (Affidavit ¶ 22; R.R.
7
at 84a.) In this case, BCI2’s application received preliminary scores but “did not
receive a final score due to their [sic] application being deemed incomplete and
therefore rejected.” (Affidavit ¶ 23; R.R. at 84a.)
In support of the contention that the Affidavit fails to establish that the
predecisional deliberations exemption bars the release of the requested documents,
Requester first argues that the sworn Affidavit submitted by Ms. Podolak was
insufficiently detailed, was conclusory, and/or was not submitted in good faith.
Requester focuses on alleged deficiencies in the Affidavit, including the affiant’s
failure to address points in her earlier testimony—primarily that in some cases she
referred to a singular “score” awarded by the committee and sometimes to
“scores”— and contends that the Affidavit should be questioned and discarded. As
noted above, we see no significance to the references to both “scores” and “a score”;
it is obvious that scores are given in various categories and combined into a total
score.8 Without a doubt, some aspects of the process remain obscure, but we do not
find evidence of bad faith.
Nevertheless, we agree that the Affidavit fails to establish the elements
of the predecisional deliberations exemption. “Only . . . confidential deliberations
of law or policymaking, reflecting opinions, recommendations or advice [are]
protected as ‘deliberative.’” Carey v. Pa. Dep’t of Corr., 61 A.3d 367, 378 (Pa.
Cmwlth. 2013). It is not disputed that the Department itself released the score sheets
and final scores of dozens of other successful and unsuccessful applicants whose
applications were deemed complete. (See “Office of Medical Marijuana Website,
Posted Scores,” Requester’s Br. at App. C.) Thus, it is unclear how the Department
can claim that such scores are confidential. In addition, to qualify to be exempted
8
See supra note 3.
8
from disclosure, an agency must explain how the information withheld reflects or
shows the deliberative process in which an agency engages during its decision-
making.9 Twp. of Worcester, 129 A.3d at 61. We cannot discern how the score or
scores, either preliminary or final, as distinguished from the evaluation committee’s
notes or comments, disclose the MM Office’s deliberations or deliberative process.
Even if one could somehow successfully divine the deliberative process of the MM
Office from the score sheet, the same would certainly be obvious from any of the
dozens of other applicants’ score sheets which were released. In sum, while the
scores are internal and predecisional, they are neither confidential nor deliberative.10
The Temporary Regulation
The temporary regulation provides in relevant part:
9
We note the case of Digital-Ink, Inc. v. Department of General Services, 923 A.2d 1262 (Pa.
Cmwlth. 2007), applied the deliberative process privilege to scores and rankings of requests for
proposals in the context of the procurement process. That case is readily differentiable as it was
decided under the former version of the RTKL, Act of June 21, 1957, P.L. 390, as amended, 65
P.S. §§ 66.1-66.9, which was repealed and replaced by the current RTKL, see Section 3102 of the
RTKL, 65 P.S. § 67.3102 (relating to repeals). Under the former RTKL, the “requesting party
ha[d] the burden to establish that the documents he or she [sought] [were] public records under the
RTKL.” 923 A.2d at 1267 n.7. However, under the current RTKL it is presumed that a record in
the possession of a Commonwealth agency is a public record, Section 305(a) of the RTKL, 65 P.S.
§ 67.305(a), and the agency seeking to withhold a document has the burden of proving by a
preponderance of the evidence that it is exempt under Section 708, exempt under other Federal or
state law, or protected by privilege. W. Chester Univ. of Pa. v. Schackner, 124 A.3d 382, 393 (Pa.
Cmwlth. 2015). As we have held that the Department has not met that burden, we cannot find that
the deliberative process privilege, which has been incorporated into the current RTKL as the
predecisional deliberations exemption, applies.
10
We do not believe that our Supreme Court’s recent holding in ACLU requires that this Court
engage in an in camera review of the documents. First, the OOR did not review the documents
sought to be withheld so, unlike in ACLU, we have reviewed the entire record before the
administrative body. Second, our holding is based on our legal conclusion that the Affidavit
submitted by the Department fails to meet its burden to establish all the requirements of the claimed
exemption. It is not the job of this Court to scour the withheld documents to find justification for
the exemption not explained by the agency.
9
(b) The following information is considered confidential,
is not subject to the [RTKL] and will not otherwise be
released to a person unless pursuant to court order:
....
(11) The names and any other information relating
to persons reviewing permit applications, including a
reviewer’s individual permit application reviews and
notes.
28 Pa. Code § 1141.22(b)(11) (emphasis added). Requester argues that the
preliminary score assigned by the evaluation committee was the work of the
evaluation committee as a whole, and did not constitute information protected by the
temporary regulation. We agree.
While the individual permit application reviews and notes, and perhaps
even individual evaluation committee member scores, are addressed and protected
by the temporary regulation as “individual permit application reviews and notes,”
the temporary regulation does not extend its protections to the output of the
committee as a whole.
Remedy
Accordingly, we reverse the Final Determination of the OOR and direct
the Department to release the preliminary scores or score sheet of the evaluation
committee as a whole related to BCI2’s application. However, where the requested
documents reflect both exempt and non-exempt information, the correct remedy is
to order release of the portion of the records that are not exempt. See Section 706 of
the RTKL, 65 P.S. § 67.706 (“The agency may not deny access to the record if the
information that is not subject to access is able to be redacted.”). Thus, here, to the
extent the score sheet—or other records reflecting the evaluation committee’s score
10
or scores—contain notes or comments in addition to the scores, such information
may be redacted.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Matthew Scot Payne, :
Petitioner :
:
v. : No. 579 C.D. 2019
:
Pennsylvania Department of Health, :
Respondent :
ORDER
AND NOW, this 15th day of September, 2020, the Final Determination
of the Office of Open Records is REVERSED. The Pennsylvania Department of
Health is DIRECTED to release the requested documents, as redacted in accordance
with the foregoing opinion.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge