FINAL DETERMINATION
IN THE MATTER OF
J. DALE SHOEMAKER AND
PUBLICSOURCE,
Requester
v.
PENNSYLVANIA OFFICE OF THE
GOVERNOR,
Respondent

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Docket No.: AP 2017-2254

INTRODUCTION
J. Dale Shoemaker and PublicSource (collectively, “Requester”) submitted a request
(“Request”) to the Pennsylvania Office of the Governor (“Office”) pursuant to the Right-to-Know
Law (“RTKL”), 65 P.S. §§ 67.101 et seq., seeking, among other items, documents related to
Commonwealth incentives included in proposals of the Cities of Pittsburgh and Philadelphia to
host the second corporate headquarters of Amazon Inc. The Office denied the Request, stating,
among other reasons, that the records are 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 in part and denied in part, and the Office is required
to take further action as directed.

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 FACTUAL BACKGROUND
On October 20, 2017, the Request was filed, seeking:
[1.] A full copy of the proposal the Commonwealth, the City of Philadelphia and
its partners submitted to Amazon Inc. on Oct. 19, 2017 to be the home of the
company’s second headquarters as well as all supplemental materials.
[2.] All documents related to the sites the city proposed Amazon Inc. could occupy.
[3.] All documents related to the incentives offered by the state of Pennsylvania
and the City of Philadelphia “to offset initial capital outlay and ongoing
operational costs” of Amazon, as detailed in Amazon’s request for proposal.
[4.] A full copy of the proposal the Commonwealth, 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.” This also should include all supplemental materials.
[5.] All documents related to the sites the city proposed Amazon Inc. could occupy.
[6.] 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 proposal.
On November 27, 2017, after extending its time to respond by thirty days, 65 P.S. § 67.902(b), the
Office denied the Request, stating that certain records were not records “of” the Office as defined
in the RTKL and that other records were exempt from public access as trade secrets and
confidential proprietary information, 65 P.S. § 67.708(b)(11).
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 Office to notify any third parties of their ability to participate in this appeal. See 65 P.S. §
67.1101(c).
On December 18, 2017, the Office submitted a position statement claiming that it does not
possess records responsive to Items 1, 2, 4, and 5 of the Request. With respect to Items 3 and 6 of

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 the Request, the Office claims that the responsive incentive proposals, prepared by the
Commonwealth and provided to various Metropolitan Statistical Areas (“MSAs”) in the
Commonwealth, consist of confidential proprietary information or trade secrets and, in order to
receive the incentive proposals, each MSA was required to execute nondisclosure agreements. In
addition, the Office argues that the responsive incentives have intrinsic economic value based on
the economic benefits of the Commonwealth being selected as the second headquarters of Amazon
Inc. and that the incentives are “exclusively the product of the Commonwealth’s analysis and
abilities.” The Office also submitted the attestation, made under penalty of perjury, of Marc
Eisenstein, the Office’s Open Records Officer. Additionally, the Office submitted copies of
nondisclosure agreements executed by the agencies and other entities receiving information
regarding economic incentives offered by the Pennsylvania Department of Community and
Economic Development.
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.

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 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.
The Office is a Commonwealth agency subject to the RTKL that is required to disclose
public records. 65 P.S. § 67.301. 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).

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 1. The Office does not possess records responsive to Items 1, 2, 4 and 5 of the Request
The Office claims that it does not possess records responsive to Items 1, 2, 4, and 5 of the
Request. Mr. Eisenstein attests that:
4) In response to the [R]equest, I reviewed the operations and programs of the
Office, and consulted with officials and employees within the Office who are
responsible for economic development initiatives. Such review and consultation
has revealed that the Office does not possess, maintain or have custody or control
over: 1) the proposal the Commonwealth, City of Philadelphia and its partners
submitted to Amazon Inc. on October 19, 2017 to be the home of the company’s
second headquarters or any supplementary materials; 2) documents related to the
sites the city proposed to Amazon Inc. could occupy; 3) the proposal the
Commonwealth, Allegheny County, the City of Pittsburgh and its partners
submitted to Amazon Inc. on October 19, 2017 to be the home of the Company’s
second headquarters, titled “Future. Forged. For All” or any supplemental
materials; 5) or documents related to the sites the [C]ity of Pittsburgh proposed
Amazon Inc. could occupy….
6) In light of the foregoing, based upon a good-faith search of the records of the
Office, I hereby swear and affirm, under penalty of perjury, that the Office does not
possess, maintain or have custody or control over the records identified above as
responsive to the instant [R]equest beyond those relating to the Commonwealth’s
proposed incentives communicated to various MSAs.
Under the RTKL, a sworn attestation 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). In the absence of any
competent evidence that the Office acted in bad faith or that the records exist, “the averments in
[the attestation] should be accepted as true.” McGowan v. Pa. Dep’t of Envtl. Prot., 103 A.3d 374,
382-83 (Pa. Commw. Ct. 2014) (citing Office of the Governor v. Scolforo, 65 A.3d 1095, 1103
(Pa. Commw. Ct. 2013)). Based upon the evidence provided, the Office has demonstrated it only
possess records “‘related to the incentives’ proposed by the Commonwealth to various [MSAs] …
which may have submitted proposals to Amazon’” that are responsive to Items 3 and 6 of the

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 Request and maintains no other responsive records in its possession, custody or control. See
Hodges, 29 A.3d at 1192.
2. The Commonwealth’s proposed incentives responsive to Items 3 and 6 of the
Request cannot be withheld under Section 708(b)(11) of the RTKL
The Office argues that the proposed incentives responsive to Items 3 and 6 of the Request
are not subject to public access because they are exempt under Section 708(b)(11) of the RTKL.
Section 708(b)(11) of the RTKL 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:

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

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 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
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.
a. The proposed incentives are not trade secrets
Although the Commonwealth maintains that the proposed incentives have economic value,
and disclosure of the proposed incentives would allow other jurisdictions to appropriate that
economic value, the proposed incentives are 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

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 involving transportation between cities, states, and countries.” Id. at 325. 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”).
While the Office cites to other agencies that either maintain or protect Commonwealth
intellectual property—namely, the Pennsylvania Department of Transportation and Office of
Administration, respectively—there is no evidence demonstrating that the incentive proposals
responsive to Items 3 and 6 of the Request are related to any business or commerce being
conducted by the Commonwealth. Instead, through the proposed incentives, the Commonwealth
appears to have created the incentives to attract Amazon to the Commonwealth so that it may
engage in commerce, and the Commonwealth can reap the benefits of jobs and investment.
The Office 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, *13-

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 14, 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
Charter School is providing the essential governmental service of education and its ‘competitors’
are primarily other local agencies”). Therefore, the proposed incentives responsive to Items 3 and
6 of the Request cannot constitute or contain trade secrets of the Office.
b. The proposed incentives are not confidential proprietary information
The Office also argues that the proposed incentives contains confidential proprietary
information, and therefore must be withheld. While the Commonwealth has treated the proposed
incentives as confidential—including requiring MSA recipients of the information to execute
nondisclosure agreements—this alone does not make the proposal confidential proprietary
information. 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 72
(discussing the difference between “person” and “individual” under the RTKL).

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 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, the Office’s incentive proposal cannot constitute confidential
proprietary information of the Commonwealth under the RTKL. Therefore, the Commonwealth—
by definition—cannot meet the requirements of the confidential proprietary information.1
CONCLUSION
For the foregoing reasons, Requester’s appeal is granted in part and denied in part, and
the Office is required to provide all responsive records to the Requester within thirty days. Within
thirty days of the mailing date of this Final Determination, any party may appeal to the
Commonwealth Court. 65 P.S. § 67.1301(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.2 This Final Determination shall be
placed on the OOR website at: http://openrecords.pa.gov.
FINAL DETERMINATION ISSUED AND MAILED: January 31, 2018
/s/ Benjamin A. Lorah
______________________
APPEALS OFFICER
BENJAMIN A. LORAH, ESQ.
Sent to:

J. Dale Shoemaker (via e-mail only);
Thomas Howell, Esq. (via e-mail only);
Marc Eisenstein (via e-mail only)

Because the Office does not meet the definition of a “person” who may claim that a record is confidential proprietary
information, the OOR is not required to address the Office’s argument that the exemption applies equally to
information both received by and created by an agency. However, the OOR has previously held that, to meet the
definition of confidential proprietary information, the information must be received by the agency, as stated in the
definition of confidential proprietary information. See PA Waste Transfer, LLC v. County of Lycoming, OOR Dkt.
AP 2015-2659, 2016 PA O.O.R.D. LEXIS 116 (finding that records did not constitute confidential proprietary
information under Section 708(b)(11) because the records were created by the agency).
2
Padgett v. Pa. State Police, 73 A.3d 644, 648 n.5 (Pa. Commw. Ct. 2013).
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