FINAL DETERMINATION
IN THE MATTER OF
J. DALE SHOEMAKER AND
PUBLICSOURCE,
Requester
v.
ALLEGHENY COUNTY,
Respondent

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Docket No.: AP 2017-2252

INTRODUCTION
J. Dale Shoemaker, a reporter for PublicSource (collectively, “Requester”), submitted a
request (“Request”) to Allegheny County (“County”) pursuant to the Right-to-Know Law
(“RTKL”), 65 P.S. §§ 67.101 et seq., seeking a copy of a proposal submitted to Amazon, along
with any records related to that proposal. The County denied the Request, stating, among other
reasons, that the records constitute confidential proprietary information and trade secrets. The
Requester appealed to the Office of Open Records (“OOR”). For the reasons set forth in this Final
Determination, the appeal is granted, and the County is required to take further action as directed.

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 FACTUAL BACKGROUND
On October 20, 2017, the Request was filed, seeking “all documents related to the bid
Allegheny County, the City of Pittsburgh and its partners made to Amazon Inc. to locate its ‘HQ2’
facility in Pittsburgh or the surrounding region …, including but not limited to:
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A full copy of the proposal Allegheny County, the City of Pittsburgh and its
partners submitted to Amazon Inc. on Oct. 19, 2017 to be the home of the
company’s second headquarters, titled “Future. Forged. For All.” as well as
all supplementary materials.

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All documents related to the sites the [C]ity proposed Amazon Inc. could
occupy.

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All documents related to the incentives offered by the state of Pennsylvania, the
[C]ity of Pittsburgh and/or Allegheny County “to offset initial capital outlay
and ongoing operational costs” of Amazon, as detailed in Amazon’s request for
proposals.”

On November 27, 2017, after extending its time to respond by thirty days, 65 P.S. § 67.902(b), the
County denied the Request, arguing that the records constitute confidential proprietary information
or trade secrets, 65 P.S. § 67.708(b)(11);1 contain real estate evaluations, 65 P.S. § 67.708(b)(22);
and constitute proposal records, 65 P.S. § 67.708(b)(26).
On December 1, 2017, the Requester appealed to the OOR, challenging the denial and
stating grounds for disclosure. The OOR invited both parties to supplement the record and directed
the County to notify any third parties of their ability to participate in this appeal. See 65 P.S. §
67.1101(c).
On December 13, 2017, the County submitted a position statement in support of the
exemptions cited in its response. The County also submitted the affidavit, made under penalty of
perjury, of Jennifer Liptak, the Chief of Staff for County Executive Rich Fitzgerald. Additionally,
the County provided a copy of Amazon’s Request for Proposals instructions. Finally, the County

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The County also cited the Pennsylvania Uniform Trade Secrets Act, 12 Pa.C.S. §§ 5301 et seq.

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 stated that it adopted the arguments and evidence set forth by the City of Pittsburgh (“City”) in the
appeals docketed at Shoemaker and PublicSource v. City of Pittsburgh, OOR Dkts. AP 2017-2249,
2017-2250, and 2017-2251 (collectively, “City appeals”), all of which involve the Amazon
proposal.2
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.” 65 P.S. § 67.1102(a)(2). An appeals officer may conduct a hearing to resolve an appeal.
The decision to hold a hearing is discretionary and non-appealable. Id. 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. Here, neither
party requested a hearing; however, the OOR has the necessary information and evidence before
it to properly adjudicate the matter.

2

Most of the arguments and evidence submitted in the City appeals regarding the proposal are duplicative of those
submitted by the County in this appeal, and as a result, do not need to be separately discussed here, with the exception
of the attestation of Brian Ross, which will be discussed later in this Final Determination.

3

 The County is a local agency subject to the RTKL that is required to disclose public
records. 65 P.S. § 67.302. Records in possession of a local 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. 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). 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)). “The burden of proving a record does not exist ... is placed on the agency
responding to the right-to-know request.” Hodges v. Pa. Dep’t of Health, 29 A.3d 1190, 1192 (Pa.
Commw. Ct. 2011).
1. The proposal cannot be withheld
The County argues that the Amazon proposal is not subject to public access. First, it
maintains that the proposal is exempt under Section 708(b)(11) of the RTKL, which exempts from
disclosure “[a] record that constitutes or reveals a trade secret or confidential proprietary
information.” 65 P.S. § 67.708(b)(11). These terms are defined in Section 102 of the RTKL as
follows:
“Confidential proprietary information.”
received by an agency:

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Commercial or financial information

 (1) which is privileged or confidential; and
(2) the disclosure of which would cause substantial harm to the
competitive position of the [entity] that submitted the information.
“Trade secret.” Information, including a formula, drawing, pattern, compilation,
including a customer list, program, device, method, technique or process that:
(1) derives independent economic value, actual or potential, from not
being generally known to and not being readably ascertainable by
proper means by other persons who can obtain economic value from
its disclosure or use; and
(2) is the subject of efforts that are reasonable under the circumstances
to maintain its secrecy.
65 P.S. § 67.102 (emphasis added). An agency must establish that both elements of either of 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) actual competition in the relevant market;
and, (2) a likelihood of substantial competitive injury if the information were released.” Id.
Pennsylvania courts confer “trade secret” status based upon the following factors: (1) the
extent to which the information is known outside of the business; (2) the extent to which the
information is known by employees and others in the business; (3) the extent of measures taken to
guard the secrecy of the information; (4) the value of the information to the business and to
competitors; (5) the amount of effort or money expended in developing the information; and (6)
the ease or difficulty with which the information could be properly acquired or duplicated by

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 others. See, e.g., Crum v. Bridgestone/Firestone N. Amer. Tire, 907 A.2d 578 (Pa. Super. Ct.
2006) (adopting standard from RESTATEMENT (SECOND) OF TORTS § 757 (1965)). To constitute a
“trade secret,” the information must be an “actual secret of peculiar importance to the business and
constitute competitive value to the owner.” Parsons v. Pa. Higher Educ. Assistance Agency, 910
A.2d 177 (Pa. Commw. Ct. 2006). The most critical criteria are “substantial secrecy and
competitive value.” Crum, 907 A.2d at 585. While the County has also separately raised the
Uniform Trade Secrets Act, 12 Pa.C.S. §§ 5301 et seq., as a basis for denial, the RTKL’s “selfcontained trade-secrets exception supplants the more general application of the Uniform Trade
Secrets Act,” so that the OOR need not separately analyze whether the Uniform Trade Secrets
Act applies. See Eiseman, 125 A.3d at 32-33; see also Pa. Dep’t of Rev. v. Flemming, No.
2318 C.D. 2014, 2015 Pa. Commw. Unpub. LEXIS 626, *9-10 (Pa. Commw. Ct. 2015) (“[The
RTKL’s] definition [of trade secrets] is identical to that contained in the Uniform Trade Secrets
Act”).
a. The proposal is not a trade secret
The County argues that the proposal constitutes both confidential proprietary information
and a trade secret. Although the County maintains that the proposal has economic value, and
disclosure of the proposal would allow other jurisdictions to appropriate that economic value, the
proposal is not covered by the trade secrets exemption.
While not defined in the RTKL, “trade” is commonly defined as: “1. The business of
buying and selling or bartering goods or services; COMMERCE…. 2. A transaction or swap. 3. A
business or industry occupation; a craft or profession. – trade, vb.” BLACK’S LAW DICTIONARY
1721 (10th ed. 2014). Commerce, meanwhile, is defined as “[t]he exchange of goods and services,
esp. on a large scale involving transportation between cities, states, and countries.” Id. at 325.

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 Necessarily, a “trade secret” pertains to business or commerce, and this context is crucial in
understanding the exemption. See 1 Pa.C.S. § 1903(a) (“Words and phrases shall be construed
according to rules of grammar and according to their common and approved usage …”); 1 Pa.C.S.
§ 1923(c) (“Words and phrases which may be necessary to the proper interpretation of a statute
and which do not conflict with its obvious purpose and intent, nor in any way affect its scope and
operation, may be added in the construction thereof”). Here, the proposal is not related to any
business or commerce being conducted by the County; instead, through the proposal, the County
is hoping to attract Amazon to the region so that it may engage in commerce, and the region can
reap the benefits of jobs and investment.
The County has not pointed to any support for the proposition that a government agency
may have a trade secret when not engaging in business or commerce. The Pennsylvania Supreme
Court has stated that a trade secret must be “of peculiar importance to the business and constitute
competitive value to the owner.” Parsons v. Pa. Higher Educ. Assistance Agency, 910 A.2d 177,
185 (Pa. 2006) (emphasis added); see also Hoffman v. Commonwealth, 455 A.2d 731 (Pa.
Commw. Ct. 1983) (finding that “the trade secret contention ceases to be of any moment when the
function is recognized as governmental, rather than that of a private business”).

While

Pennsylvania courts have intimated that agencies, when engaging in business, may have trade
secrets, see Parsons, 910 A.2d at 186-87; Flemming, 2015 Pa. Commw. Unpub. LEXIS 626, *1314, the OOR cannot find any support for the notion that an agency can have a trade secret when it
is not engaged in business or commerce. See Hacke and PublicSource v. Pa. Cyber Charter Sch.,
OOR Dkt. AP 2017-1684, 2017 PA O.O.R.D. LEXIS 1773 (“However, the OOR cannot conclude
that the Charter School engages in a trade or that the Charter School’s marketing plan is the type
of information from which economic value can be derived where the primary activity of the

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 Charter School is providing the essential governmental service of education and its ‘competitors’
are primarily other local agencies”). Therefore, the proposal cannot constitute or contain trade
secrets of the County. See also Van Osdol and WTAE-TV v. Allegheny County, OOR Dkt. AP
2017-2248, 2018 PA O.O.R.D. LEXIS 112.
b. The proposal is not confidential proprietary information
The County also argues that the proposal contains confidential proprietary information, and
therefore must be withheld in its entirety. While the City, County, and Commonwealth have
treated the proposal as confidential, this alone does not make the proposal confidential proprietary
information.3 Instead, certain requirements must be met. The definition of confidential proprietary
information requires that the information be “received by an agency.” 65 P.S. § 67.102. Likewise,
the definition requires that there must be “substantial harm to the competitive position of the
person that submitted the information.” Id. (emphasis added). “Person” is undefined in the RTKL;
however, the Statutory Construction Act defines “person” to include “a corporation, partnership,
limited liability company, business trust, other association, government entity (other than the
Commonwealth), estate, trust, foundation or natural person.” 1 Pa.C.S. § 1991; see also McKelvey
and PennLive v. Pa. Dep’t of Health, OOR Dkt. AP 2017-1443, 2018 PA O.O.R.D. LEXIS ___
(discussing the difference between “person” and “individual” under the RTKL). Therefore, while
the City and County can constitute a person, the definition of confidential proprietary information
requires that they submit the information to an agency.
Here, it is undisputed that the proposal was submitted to Amazon through PGHQ2, LLC,
which “was formed to serve as the conduit through which a response to the Amazon RFP would

Likewise, Ms. Liptak attests that “assurances were made to participants, including owners of real estate potentially
involved in future transactions, that confidential proprietary information would not be released.” However, these
assurances do not establish that the proposal is confidential proprietary information.
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 be prepared and submitted on behalf of the Pittsburgh-Allegheny County region.” There is no
claim that the proposal is confidential proprietary information of PGHQ2, LLC; rather, the City
and the County claim that the proposal contains the confidential proprietary information of the
City, County, and Commonwealth.4 The proposal was not received by or submitted to another
agency; instead, it was received by and submitted to Amazon. Because the confidential proprietary
information exemption does not protect this type of record, the proposal cannot be confidential
proprietary information under the RTKL.5
The City has also provided the attestation of Brian Ross, Deputy Director for Project
Management for the Pennsylvania Department of Community and Economic Development
(“DCED”),6 who attests that the proposal contains a “DCED/Commonwealth Incentive Proposal”
and that this information is “confidential proprietary information to the Department and the
Commonwealth of Pennsylvania.”7 However, the Commonwealth is not a “person” under the
definition of confidential proprietary information.

See 1 Pa.C.S. § 1991 (excluding the

Commonwealth). Because the Commonwealth is not a person, DCED’s incentive proposal cannot
constitute confidential proprietary information of the Commonwealth.8

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Regardless, PGHQ2, LLC is an alter ego of the City and County. See West Chester Univ. of Pa. v. Schackner et al.,
124 A.3d 382, 395 (Pa. Commw. Ct. 2015) (“Foundations at the various institutions of the SSHE in large part are alter
egos of the member universities to carry out activities that those universities want to undertake; otherwise, they would
not exist”). Kevin Acklin, an affiant in the City appeals and the Mayor’s Chief of Staff and Chairman of the Board of
the Urban Redevelopment Authority, also identifies himself as Manager of PGHQ2, LLC. Any argument that PGHQ2,
LLC is a separate legal entity under the RTKL would ignore the reality that PGHQ2, LLC was formed so that the City
and County could submit a regional proposal.
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Additionally, Section 708(c) of the RTKL states that the exemption does not apply to financial records. See 65 P.S.
§ 67.708(c); see also 65 P.S. § 67.102 (defining “financial record”). The County fails to explain how financial
components of the proposal, specifically financial incentives, do not meet this definition.
6
DCED did not request to participate pursuant to 65 P.S. § 67.1101(c) in this appeal, or the appeals docketed against
the City.
7
This affidavit is referenced by the County in its position statement, and incorporated by reference by the County.
8
Mr. Ross does not suggest that the information constitutes a trade secret. Although the RTKL’s “self-contained
trade-secrets exception supplants the more general application of the Uniform Trade Secrets Act,” the definition of
“person” in the Uniform Trade Secrets Act includes the government, and does not exclude the Commonwealth. See
12 Pa.C.S. § 5302. While this definition is relevant to the determination of whether information constitutes a trade
secret under the RTKL, it is inapplicable to confidential proprietary information, which is not covered under the
Uniform Trade Secrets Act. Regardless, as set forth above, there is no support for the incentive proposal being a trade

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 c. The County has not met its burden of proving that the proposal is exempt under
Section 708(b)(22) of the RTKL
The County also argues that the proposal contains real estate feasibility estimates and
evaluations, specifically “information setting forth the merits of possible sites for the location of
the Amazon HQ2 Project.” Section 708(b)(22) exempts from disclosure:
The contents of real estate appraisals, engineering or feasibility estimates,
environmental reviews, audits or evaluations made for or by an agency relative to
the following:
(A) The leasing, acquiring or disposal of real property or an interest
in real property.
(B) The purchase of public supplies or equipment included in the
real estate transaction.
(C) Construction projects.
65 P.S. § 67.708(b)(22)(i) (emphasis added). However, the exemption “shall not apply once the
decision is made to proceed with the lease, acquisition or disposal of real property or an interest in
real property or the purchase of public supply or construction project.” 65 P.S. § 67.708(b)(22)(ii).
The OOR has held that this exemption is inapplicable to the contents of the proposal,
finding:
Based on Amazon’s RFP instructions, evaluations were made to locate
properties that meet the criteria for Amazon. These evaluations were “made for or
by an agency” as required by Section 708(b)(22). However, neither the City nor
the County are necessarily leasing, acquiring or disposing of real property on
Amazon’s behalf. As explained above, there is flexibility in how these properties
could be obtained, and it is unclear whether Amazon would obtain these properties
directly, or if the City or County (or even PGHQ2, LLC) would obtain the
properties to convey to Amazon. Under the exemption, if Amazon itself performed
the evaluations, the evaluations would not be exempt from disclosure because the
evaluations were not prepared “by or for” an agency. See, e.g., Cedar Realty Trust
v. Lower Macungie Twp., OOR Dkt. AP 2013-1799, 2013 PA O.O.R.D. LEXIS
secret of the Commonwealth. Further, although having notice of this appeal, DCED has not requested to participate
pursuant to 65 P.S. § 67.1101(c).

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 1072. Similarly, the exemption does not permit an agency to perform real estate
evaluations on a private entity’s behalf, when that agency is not the entity ultimately
leasing, acquiring or disposing of real property. “Consistent with the RTKL’s goal
of promoting government transparency and its remedial nature, the exceptions to
disclosure of public records must be narrowly construed.” Office of the Governor
v. Davis, 122 A.3d 1185, 1191 (Pa. Commw. Ct. 2015) (citation omitted).
Therefore, the exemption is limited to evaluations performed in conjunction with
an agency’s lease, purchase, or disposition of property, and the proposal is not
subject to the exemption.
Van Osdol and WTAE-TV v. Allegheny County, OOR Dkt. AP 2017-2248, 2018 PA O.O.R.D.
LEXIS 112. The County has not submitted any evidence different from that submitted in Van
Osdol. As such, the County has not met its burden of proving that the proposal may be withheld
pursuant to Section 708(b)(22).
d. The County has not met its burden of proving that the proposal is exempt under
Section 708(b)(26) of the RTKL
Finally, the County argues that the proposal is exempt from disclosure under Section
708(b)(26) of the RTKL, which exempts from disclosure:
A proposal pertaining to agency procurement or disposal of supplies, services
or construction prior to the award of the contract or prior to the opening and
rejection of all bids; financial information of a bidder or offeror requested in an
invitation to bid or request for proposals to demonstrate the bidder’s or offeror’s
economic capability; or the identity of the members, notes and other records of
agency proposal evaluation committees established under 62 Pa.C.S. § 513
(relating to competitive sealed proposals).
65 P.S. § 67.708(b)(26) (emphasis added).
The County argues that “the proposal exemption is applicable because the Requested
Information is the Pittsburgh HQ2 Proposal to Amazon” and that “[b]ecause the Requested
Information pertains to a proposal prior to the award of any contract or the rejection of a proposal,
the Requested Information does not have to be made accessible at this time.” However, the County
misconstrues the exemption. The RTKL defines “agency” as “[a] Commonwealth agency, a local
agency, a judicial agency or a legislative agency.” 65 P.S. § 67.102. As a publicly-traded

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 corporation, Amazon is none of these. The City and the County are neither procuring nor disposing
of supplies, services or construction from Amazon, as contemplated by the exemption; instead, as
explained in Amazon’s RFP instructions, the information provided in the proposal “will allow
Amazon to determine the ideal location for our Project.” Section 708(b)(26) is limited to situations
where an agency receives a proposal. The purpose of the RTKL is to “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, 990 A.2d at 824. As a result, it is
clear that Section 708(b)(26) was not intended to shield promises made, and incentives offered, to
third parties by government agencies.
2. The County has not met its burden of proving that no other responsive records
exist
On appeal, the County states that the proposal contains the records sought in the Request.
However, Ms. Liptak, in her affidavit, twice refers to “the requested records, including the …
Proposal,” and does not attest to the nonexistence of any other records. Under the RTKL, a sworn
affidavit or statement made under the penalty of perjury is competent evidence to sustain an
agency’s burden of proof. 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).
Meanwhile, unsworn statements of counsel do not constitute evidence. Davis, 122 A.3d at 1193
(“Position statements are akin to briefs or proposed findings of fact, which, while part of the record,
are distinguishable from the evidentiary record”) (citations omitted); see also Hous. Auth. of
Pittsburgh v. Van Osdol, 40 A.3d 209, 216 (Pa. Commw. Ct. 2012) (noting that “assertions in
briefs” are “not evidence of record”).
Here, the County states that no other records exist, but the affidavit of Ms. Liptak – the
only competent evidence submitted by the County in this appeal – does not address this statement,

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 and infers that additional records exist. While the evidence demonstrates that the proposal contains
much of the requested information, the Request also seeks “all documents related to the bid,” and
therefore seeks records in addition to the proposal. The County has not demonstrated that no other
responsive records exist, and therefore, has not met its burden of proof.
The OOR is mindful that an agency cannot produce records that do not exist within its
“possession, custody or control” and, accordingly, is not ordering the creation of any records
sought in the Request. Absent the County providing a sufficient evidentiary basis that no records
exist, the OOR will order disclosure of responsive public records. See generally Sindaco v. City
of Pittston, OOR Dkt. AP 2010-0778, 2010 PA O.O.R.D. LEXIS 755; Schell v. Delaware
County, OOR Dkt. AP 2012-0598, 2012 PA O.O.R.D. LEXIS 641.
CONCLUSION
For the foregoing reasons, Requester’s appeal is granted, and the County is required to
provide the requested records to the Requester within thirty days. Within thirty days of the mailing
date of this Final Determination, any party may appeal to the Allegheny County Court of Common
Pleas. 65 P.S. § 67.1302(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, the OOR is not a proper party to
any appeal and should not be named as a party.9 This Final Determination shall be placed on the
OOR website at: http://openrecords.pa.gov.
FINAL DETERMINATION ISSUED AND MAILED: January 31, 2018
/s/ Kyle Applegate
______________________
APPEALS OFFICER
KYLE APPLEGATE, ESQ.

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

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 Sent to:

J. Dale Shoemaker (via e-mail only);
Jerry Tyskiewicz (via e-mail only);
George Janocsko, Esq. (via e-mail only);
Donna Bednar (via e-mail only)

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