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

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Docket No.: AP 2017-2249
(CONSOLIDATED)

INTRODUCTION
J. Dale Shoemaker, a reporter for PublicSource (collectively, “Requester”), submitted three
requests (“Requests”) to the City of Pittsburgh (“City”) pursuant to the Right-to-Know Law
(“RTKL”), 65 P.S. §§ 67.101 et seq., seeking a copy of a proposal submitted to Amazon, any
records related to that proposal, along with various communications and correspondence related
to the proposal. The City denied the Requests, stating, among other reasons, that the records
constitute confidential proprietary information and trade secrets, and reflect internal, predecisional
deliberations. 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 City is required to take further
action as directed.
FACTUAL BACKGROUND
On October 20, 2017, the Requests were filed, seeking:

1

 Request 1: “…all documents related to the bid 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 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.”

Request 2: “…all documents related to the aid the [City] solicited from individuals,
governments, companies and nonprofits to help assemble its bid for Amazon[,] Inc.’s second
headquarters, as well as related expenses…include[ing] but [] not limited to:
-

All responses to the City’s Request for Expressions of Interest it issued to
property owners as part of its search for sites to offer to Amazon[,] Inc.

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All correspondence the City distributed to potential partners in response to
Amazon[,] Inc.’s Request for Proposals. These may include letters, emails or
other forms of communication the City used to solicit advice and talent outside
of its own workforce.

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A detailed list of all of the partners, paid or unpaid, the City…worked with to
prepare its bid to Amazon[,] Inc.

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All documents, including contracts and agreements, that detail how much
money and other resources the City and each of its partners spent to produce
the final bid to Amazon[,] Inc. This could also include an itemized budget of
actual expenses, if it exists.”

Request 3: “…all correspondence between Pittsburgh Mayor Bill Peduto, Allegheny
County Executive Rich Fitzgerald and Stefani Pashman, CEO of the Allegheny Conference on
Community Development, related to the bid to Amazon[,] Inc. for its second headquarters the City

2

 and County worked together on.” Specifically, Request 3 noted that these records “include but are
not limited to:
-

All emails exchanged between Mayor Bill Peduto, his Chief of Staff Kevin
Acklin, County Executive Rich Fitzgerald, and CEO Stefani Pashman between
September 1, 2017 and October 19, 2017 (“Item 1”).

-

A detailed list of all meetings Mayor Peduto attended related to [the City’s] bid
for Amazon’s second headquarters. This list should include dates, times,
locations and attendees of all meetings as well as other related documents
(“Item 2”).”

On November 22, 2017, after extending its time to respond by thirty days, 65 P.S. § 67.902(b), the
City denied Request 1, 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);
constitute proposal records, 65 P.S. § 67.708(b)(26), and Request 1 is insufficiently specific, 65
P.S. § 67.703. On the same date, the City denied Request 2, arguing that the requested records are
exempt under Sections 708(b)(11), (b)(22) and (b)(26) of the RTKL. On November 22, 2017, the
City denied Request 3, relying upon the same exemptions asserted with respect to Request 2, and
also arguing that the requested records reflect internal, predecisional deliberations exempt under
65 P.S. § 67.708(b)(10)(i)(A).
On December 1, 2017, the Requester appealed to the OOR, challenging the denials and
stating grounds for disclosure.2 The OOR invited both parties to supplement the record and
directed the City to notify any third parties of their ability to participate in this appeal. See 65 P.S.
§ 67.1101(c).

1

The City also cited the Pennsylvania Uniform Trade Secrets Act, 12 Pa.C.S. §§ 5301 et seq.
The Requester filed three separate appeals docketed as AP 2017-2249, AP 2017-2250 and AP 2017-2251. Because
the appeals involve the same parties and similar issues, they are hereby consolidated into the above-referenced docket
number, OOR Dkt. AP 2017-2249.
2

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 On December 13, 2017, the City submitted a single position statement in support of the
exemptions cited in its response to the three Requests. The City also submitted the attestations,
made under penalty of perjury, of Kevin Acklin, the Mayor’s Chief of Staff and Chairman of the
Board of the Urban Redevelopment Authority, and Brian Ross, Deputy Director for Project
Management for the Pennsylvania Department of Community and Economic Development
(“DCED”).3 Additionally, the City stated that, “to the extent possible,” it adopts the arguments
and affidavits submitted by Allegheny County (“County”) in the appeals docketed at Shoemaker
v. Allegheny County, OOR Dkt. AP 2017-2252; and, Shoemaker v. Allegheny County, OOR Dkt.
AP 2017-2253.4
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

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However, DCED did not request to participate in this appeal pursuant to 65 P.S. § 67.1101(c), and the OOR does not
construe Mr. Ross’ attestation as a request to participate by DCED. The OOR notes that Mr. Ross’ attestation was
executed in response to this and similar appeals; as a result, it appears that DCED had notice of the appeal.
4
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. Additionally, in contrast to
the County, the City does not argue that the proposal contains all the records sought in the Request(s); therefore, the
issue of whether additional responsive records do or do not exist need not be discussed here.

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 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.
The City 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)).
1. Request 1 is sufficiently specific
The City argues that the portions of Request 1 seeking “all” documents do not provide a
sufficient scope and are, therefore, insufficiently specific. 65 P.S. § 67.703. Section 703 of the

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 RTKL states that “[a] written request should identify or describe the records sought with sufficient
specificity to enable the agency to ascertain which records are being requested.” When interpreting
a RTKL request, agencies should rely on the common meaning of words and phrases, as the RTKL
is remedial legislation that must be interpreted to maximize access. See Gingrich v. Pa. Game
Comm’n, No. 1254 C.D. 2011, 2012 Pa. Commw. Unpub. LEXIS 38 at *16 (Pa. Commw. Ct.
2012) (citing Bowling, 990 A.2d at 824). In determining whether a particular request is sufficiently
specific, the OOR uses the three-part balancing test employed by the Commonwealth Court in Pa.
Dep’t of Educ. v. Pittsburgh Post-Gazette, 119 A.3d 1121 (Pa. Commw. Ct. 2015), and Carey v.
Pa. Dep’t of Corr., 61 A.3d 367, 372 (Pa. Commw. Ct. 2013).
First, “[t]he subject matter of the request must identify the ‘transaction or activity’ of the
agency for which the record is sought.” Pa. Dep’t of Educ., 119 A.3d at 1125. In Carey, the
Commonwealth Court found a request for unspecified records (“all documents/communications”)
related to a specific agency project (“the transfer of Pennsylvania inmates to Michigan”) that
included a limiting timeframe to be sufficiently specific “to apprise [the agency] of the records
sought.” 61 A.3d 367. Second, the scope of the request must identify a discrete group of
documents (e.g., type or recipient). See Pa. Dep’t of Educ., 119 A.3d at 1125. Third, “[t]he
timeframe of the request should identify a finite period of time for which the records are sought.”
Id. at 1126. This factor is the most fluid and is dependent upon the request’s subject matter and
scope. Id. Failure to identify a finite timeframe will not automatically render a sufficiently specific
request overbroad; likewise, a short timeframe will not transform an overly broad request into a
specific one. Id.
Here, Request 1 provides a specific subject matter—the proposal submitted to Amazon for
the purpose of becoming the location of Amazon’s second headquarters. In addition, because

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 Request 1 relates to the proposal submitted to Amazon on October 19, 2017, the universe of records
to be searched is finite with a clear end date to the time frame. The scope is further narrowed by
additional descriptors such as, “sites the [C]ity proposed Amazon[,] Inc. could occupy[,]” and
“incentives offered… ‘to offset initial capital outlay and ongoing operational costs’ of Amazon, as
detailed in Amazon’s request for proposals.” See Pa. Dep’t of Envtl. Prot. v. Legere, 50 A.3d 260,
264-65 (Pa. Commw. Ct. 2012) (finding a request to be specific where it delineated “a clearly
defined universe of documents” and did not require the agency to make judgment calls as to
whether the records related to the request). Because Request 1 seeks discrete records concerning
the proposal submitted by the City to Amazon within a defined time frame, it is sufficiently
specific.
2.

The City may not withhold the proposal responsive to Request 1

The City 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:

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

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 (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
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 City has also separately raised the Uniform
Trade Secrets Act, 12 Pa.C.S. §§ 5301 et seq., as a basis for denial, the RTKL’s “self-contained

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 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 City argues that the proposal contains confidential proprietary information and, in a
footnote, states that “[t]o the extent that the Pennsylvania Uniform Trade Secrets Act … is
applicable, the City is prohibited from releasing the bid.” Further, the City has adopted the
arguments and evidence submitted in OOR Dkt. AP 2017-2247, in which it argues that the proposal
constitutes both confidential proprietary information and a trade secret. Although the City
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.
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.

9

 § 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”). As explained in Mr. Acklin’s attestation,
the proposal is intended “to bring Amazon to Pittsburgh” in order to “give[] this region the
potential for 50,000 more jobs and $5 billion in investment over the next decade and a half.” The
proposal is not related to any business or commerce being conducted by the City; instead, through
the proposal, the City and County are 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 City 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
Charter School is providing the essential governmental service of education and its ‘competitors’

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 are primarily other local agencies”). Therefore, the proposal cannot constitute or contain trade
secrets of the City.
b. The proposal is not confidential proprietary information
The City 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. 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). Therefore, while
the City 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
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
claims that the proposal contains the confidential proprietary information of the City, County, and

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 Commonwealth.5 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.6
The City has also provided the attestation of Brian Ross, Deputy Director for Project
Management for DCED, 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.” 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 under the
RTKL.7

5

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”). Mr. Acklin, who is 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. See Van Osdol, 2018 PA O.O.R.D. LEXIS 113, *16 n.6.
6
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 City fails to explain how financial
components of the proposal, specifically financial incentives, do not meet this definition.
7
Mr. Ross does not suggest that the information constitutes a trade secret. Although the RTKL’s “self-contained tradesecrets 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 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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 c. The City has not met its burden of proving that the proposal is exempt under
Section 708(b)(22) of the RTKL
The City also argues that the proposal contains real estate appraisals and evaluations, of
“privately owned real estate…described in the bid so as to meet Amazon’s requirements….”
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
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

13

 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, 2018 PA O.O.R.D. LEXIS at *20. The City has not submitted any evidence different
from that submitted in Van Osdol. See also Shoemaker and PublicSource v. Allegheny County,
OOR Dkt. AP 2017-2252, 2018 PA O.O.R.D. LEXIS 162; Van Osdol and WTAE-TV, OOR Dkt.
AP 2017-2248, 2018 PA O.O.R.D. LEXIS 112. As such, the City has not met its burden of proving
that the proposal may be withheld pursuant to Section 708(b)(22).
d. The City has not met its burden of proving that the proposal is exempt under
Section 708(b)(26) of the RTKL
Finally, the City 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 City argues that this exemption “protects the integrity of the sealed bid” and that “the
City is effectively participating in a sealed bid process, and Amazon is acting as the agency.”
Ultimately, the City concludes, “[t]he spirit of 708(b)(26) is to protect against unfair bidding
practices.” However, the City 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 corporation, Amazon is none of these. The City is neither procuring
nor disposing of supplies, services or construction from Amazon, as contemplated by the

14

 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.” See Van Osdol, 2018
PA O.O.R.D. LEXIS at *22. While the City points to the “spirit” of the exemption, 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.
3. The City may not withhold records responsive to Requests 2 and 3
a.
The City has not met its burden of proving that the records responsive to
Request 2 contain confidential proprietary information and trade secrets, are
exempt real estate appraisal or are exempt bid material
In its position statement, the City incorporates by reference its arguments made in regard
to Request 1. The City generally asserts that any information about the Amazon proposal is
confidential proprietary information or a trade secret, 65 P.S. § 67.708(b)(11), a record of a real
estate evaluation, 65 P.S. § 67.708(b)(22), or an exempt agency proposal record, 65 P.S. §
67.708(b)(26). As stated above, the OOR has found that the City may not withhold the proposal
and related documents based upon the cited RTKL exemptions. A review of the City’s evidence
reveals that the argument, as well as Mr. Acklin’s affidavit, is focused on the proposal and the
documents related thereto. With respect to the records requested in Request 2, while they may or
may not be related to the proposal, the City does not identify the potentially responsive records or
explain how the exemptions asserted would apply to the records. Instead, the City relies on its
analysis presented in support of its argument that the exemptions applied to the proposal and
related documents submitted to Amazon without providing specific argument or details regarding

15

 the records responsive to Request 2. The City has the burden of proving that records are exempt
from disclosure, see 65 P.S. § 67.708(a)(1), and the City has not provided sufficient evidence to
meet its burden of proof.
b. The City has not met its burden of proving that the records responsive to Request
2 are exempt internal, predecisional deliberative material
The City also asserts that all portions of Request 2 reflect internal, predecisional
deliberations that are exempt from disclosure pursuant to 65 P.S. § 67.708(b)(10)(i)(A).8 Section
708(b)(10)(i)(A) of the RTKL exempts from disclosure a record that reflects “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….” 65 P.S. § 67.708(b)(10)(i)(A). To withhold a record under Section
708(b)(10)(i)(A), an agency must show: 1) the deliberations reflected are internal to the agency,
including representatives; 2) the deliberations reflected are predecisional, i.e., before a decision on
an action; and 3) the contents are deliberative in character, i.e., pertaining to a proposed
action. See Kaplin v. Lower Merion Twp., 19 A.3d 1209, 1214 (Pa. Commw. Ct. 2011). To
establish that records are deliberative, an agency must show that the information relates to
the deliberation of a particular decision. McGowan v. Pa. Dep’t of Envtl. Prot., 103 A.3d 374,
378-88 (Pa. Commw. Ct. 2014). The term “deliberation” is generally defined as “[t]he act of
carefully considering issues and options before making a decision or taking some
action....” BLACK’S LAW DICTIONARY 492 (9th ed. 2009); see also Heintzelman v. Pa. Dep’t of
Cmty. & Econ. Dev., OOR Dkt. AP 2014-0061, 2014 PA O.O.R.D. LEXIS 254, aff’d No. 512 C.D.
2014, 2014 Pa. Commw. Unpub. LEXIS 644 (Pa. Commw. Ct. 2014). Factual material contained

8

The Department is permitted to assert these new reasons for denying access to records on appeal to the OOR. See
Levy v. Senate of Pa., 65 A.3d 361 (Pa. 2013).

16

 in otherwise deliberative documents is required to be disclosed if it is severable from its
context. McGowan, 103 A.3d at 385-86.
In its unsworn position statement, the City argues:
Requester seeks documents and email among all of the major players in the bid.
There is a very short, intense time period that is at issue. Revealing these
communications will reveal names of the members of the team, which is part of the
unique and proprietary nature of the information requested….
Every
communication, email and attachment that meets the criteria in the [R]equest is by
definition internal and predecisional as to the product that was to be produced: the
bid itself. Making release of the requested records even more problematic is the
fact that the bid is not necessarily the end of the process. When Amazon reveals
the top tier locales in early 2018, there is every reason to expect that each
jurisdiction will tweak its proposal even harder…. The communications requested
represent internal, predecisional deliberations….
Here, the records requested in Request 2, implicate the City’s interactions with potential
partners in the Amazon proposal who are external to the City. While Mr. Acklin attests,
“[e]mail[s], projections, exhibits and illustrations were … prepared with the expectation that they
would not be in the public domain,” the City does not present any evidence to indicate that the
records responsive to Request 2 consist of documents purely internal to the City. Further, Mr.
Acklin’s affidavit does not address the predecisional or deliberative nature of the requested
records. Under the RTKL, “a generic determination or conclusory statements are not sufficient to
justify the exemption of public records.” Office of the Governor v. Scolforo, 65 A.3d 1095, 1103
(Pa. Commw. Ct. 2013) (en banc); see also Office of the District Attorney of Phila. v. Bagwell,
155 A.3d 1119, 1130 (“Relevant and credible testimonial affidavits may provide sufficient
evidence in support of a claimed exemption; however, conclusory affidavits, standing alone, will
not satisfy the burden of proof an agency must sustain to show that a requester may be denied
access to records under the RTKL”) (citations omitted); Pa. Dep’t of Educ. v. Bagwell, 131 A.3d
638, 659 (Pa. Commw. Ct. 2016) (“Affidavits that are conclusory or merely parrot the exemption

17

 do not suffice”) (citing Scolforo); Schackner et al., 124 A.3d at 393 (“The evidence must be
specific enough to permit this Court to ascertain how disclosure of the entries would reflect that
the records sought fall within the proffered exemptions”) (citing Carey v. Pa. Dep’t of Corr., 61
A.3d 367, 375-79 (Pa. Commw. Ct. 2013)). Moreover, 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 City’s unsworn, conclusory submission is insufficient to meet its burden of proof.
The City asks the OOR to assume that every “communication, email and attachment” exchanged
by the “major players” on the team that produced the proposal are subject to the exemption;
however, the OOR cannot assume that the unidentified responsive records were internal or
necessarily involve deliberation. Cf. Pa. Game Comm’n v. Fennell, 149 A.3d 101 (Pa. Commw.
Ct. 2016) (holding that the OOR must consider uncontradicted statements when construing
exemptions). The City has the burden of proving that records are exempt from disclosure, see 65
P.S. § 67.708(a)(1), and the City has not provided sufficient evidence to meet its burden.9
c. The City has not met its burden of proving that the records responsive to Request
3 contain confidential proprietary information, contain trade secrets, are exempt
real estate appraisal, are exempt bid material or are exempt internal, predecisional
deliberative material
Regarding Item 1 of Request 3, in its submission, the City again incorporates by reference
the all the arguments submitted in support of RTKL exemptions asserted with respect to Requests

Request 2 seeks, among other things, “…documents…that detail how much money…the City…spent to produce the
final bid to Amazon, Inc.” While Mr. Acklin attests that “[n]o City…fund have been spent in the preparation of this
bid[,]” the City has not made an argument that records do not exist and, regardless, the referenced portion of Mr.
Acklin’s affidavit is conclusory. See Scolforo, 65 A.3d at1103.
9

18

 1 and 2, without presenting any argument relative to the emails sought in Item 1 of Request 3. As
stated above, the City argues that the Requester “seeks documents and email among all of the
major players in the bid[]” and “[r]evealing these communications will reveal members of the
team, which is part of the unique and proprietary nature of the information requested.” The City
more specifically argues that the responsive emails are exempt because they reflect an internal,
predecisional deliberation. However, Mr. Acklin’s attestation does not address how the emails are
internal, predecisional, and deliberative, stating only that “[e]mail[s] … were … prepared with the
expectation that they would not be in the public domain.”
Here, as above, the City’s unsworn, conclusory, submission is insufficient to meet its
burden of proof. The City asks the OOR to assume that any emails exchanged between Mayor
Peduto, Mr. Acklin, Mr. Fitzgerald and Ms. Pashman regarding the proposal submitted to Amazon
are subject to the exemption; however, the OOR cannot assume that emails relating to the Amazon
proposal were internal or necessarily involve deliberation.10 Therefore, the City has not provided
sufficient evidence to meet its burden of proof.
Finally, the City generally asserts that any information about the Amazon proposal is
confidential proprietary information or a trade secret, 65 P.S. § 67.708(b)(11), a record of a real
estate evaluation, 65 P.S. § 67.708(b)(22), or an exempt agency proposal record, 65 P.S. §
67.708(b)(26). However, the City has neither identified nor described the contents of the
responsive communications or provided any evidence supporting its assertion that the responsive
emails may be withheld. Accordingly, the City has not met its burden of proof. See Van Osdol
and WTAE-TV v. City of Pittsburgh, OOR Dkt. AP 2017-2247, 2018 PA O.O.R.D. LEXIS 113;
Van Osdol and WTAE-TV v. Allegheny County, OOR Dkt. AP 2017-2248, 2018 PA O.O.R.D.

10

Additionally, the City does not explain whether the emails contain any factual content or how this factual content
cannot be disclosed.

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 LEXIS 112; Boren and The Pittsburgh Tribune Review v. City of Pittsburgh, OOR Dkt. AP 20172217, 2018 PA O.O.R.D LEXIS 200.
CONCLUSION
For the foregoing reasons, Requester’s appeal is granted, and the City 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.11 This Final Determination shall be placed on the
OOR website at: http://openrecords.pa.gov.
FINAL DETERMINATION ISSUED AND MAILED: February 14, 2018
/s/ Kelly C. Isenberg
___________________
APPEALS OFFICER
KELLY C. ISENBERG, ESQ.
Sent to:

11

J. Dale Shoemaker (via e-mail only);
Celia Liss, Esq. (via e-mail only);
Eileen Hotham (via e-mail only);

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

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