IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Smart Communications Holding, Inc., :

Petitioner :

 :

v. : No. 80 C.D. 2019

 : Submitted: May 15, 2020

Bruce Wishnefsky, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COHN JUBELIRER FILED: July 6, 2020

Smart Communications Holding, Inc. (SmartCOM) petitions for review of a 

Final Determination of the Pennsylvania Office of Open Records (OOR) dated 

December 27, 2018, which granted an appeal filed by Bruce Wishnefsky 

(Requester). Requester had filed a Right-to-Know Law1(RTKL) request (Request) 

with the Department of Corrections (Department), seeking part of the Department’s

contract with SmartCOM to provide electronic mail service to state correctional 

institutions (SCIs). The Department produced a responsive record but redacted 

portions thereof based on an assertion of confidential, proprietary information and/or 

trade secrets. The OOR found SmartCOM did not meet its burden of showing the 

 

1 Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104. 
2

exemptions applied and ordered production of an unredacted copy of the record. 

Upon review, we affirm, albeit on other grounds.

2

I. BACKGROUND 

On October 13, 2018, Requester, an inmate at SCI-Laurel Highlands, 

submitted the Request to the Department seeking “the portion of the contract with 

Smart[COM] . . . that shows the time that Smart[COM] . . . is permitted under the 

contract to process and forward mail to SCI[-]Laurel Highlands, or if the standard is 

the same at all SCIs, then that time period.” (Reproduced Record (R.R.) at 9a.) On 

November 5, 2018, the Department responded to the Request, providing Requester

with access to a partially redacted document. Specifically, the Department provided 

Requester with a copy of the Statement of Work (SOW), which the Department 

stated contained the information Requester sought. According to the Department, 

paragraphs 6 through 11 of the SOW were redacted to protect confidential, 

proprietary information and/or trade secrets that are exempted from production 

pursuant to Section 708(b)(11) of the RTKL, 65 P.S. § 67.708(b)(11). 

A. Proceedings before the OOR

Requester, then proceeding pro se, filed an appeal with the OOR, challenging 

the redactions. SmartCOM filed a request to participate before the OOR on the basis 

that it was the owner of a record containing confidential, proprietary information or

trade secrets. (R.R. at 19a.) SmartCOM also submitted a position statement wherein 

it stated that paragraph 5 of the SOW provided Requester with the information he 

 

2

“[T]his Court may affirm on grounds different than those relied upon by the court or 

agency below if such grounds for affirmance exist.” Motor Coils MFG/WABTEC v. Workers’

Comp. Appeal Bd. (Bish), 853 A.2d 1082, 1087 n.9 (Pa. Cmwlth. 2004). See also McKelvey v. 

Office of Att’y Gen., 172 A.3d 122, 125 (Pa. Cmwlth. 2017) (affirming RTKL appeals officer on 

alternate grounds).
3

sought in unredacted form.3 (Id. at 20a-21a.) According to SmartCOM, the redacted 

paragraphs “do not relate to the time that SmartCOM is permitted to process mail 

under its [a]greement with [the Department].” (Id. at 21a.) SmartCOM asserted the 

paragraphs that were redacted contain confidential, proprietary information and 

trade secrets. In support thereof, SmartCOM also submitted a declaration by James 

Logan (Declaration), an owner and officer of SmartCOM. The Declaration provides, 

in relevant part, as follows:

3. SmartCOM provides communications[-]related products and 

services to correctional facilities.

4. On or about September 4, 2018, SmartCOM executed an Agreement 

for Processing Inmate Postal Mail (the “Agreement”) with the 

Commonwealth of Pennsylvania, acting through the . . . Department 

. . . .

5. Pursuant to the Agreement, SmartCOM agreed to convert incoming 

postal mail sent to the facilities within the [Department] into an 

electronic document to be delivered to [the Department].

. . . .

7. Paragraphs 6 through 11 of the [SOW] do not describe or 

demonstrate the time that SmartCOM is permitted under the Agreement 

to process and forward mail to SCI[-]Laurel Highlands or other SCIs.

8. Paragraphs 6 through 11 of the [SOW] describe in detail 

SmartCOM’s method and process of scanning mail and providing 

electronic copies to [the Department]. More specifically, these 

paragraphs describe how SmartCOM reviews and organizes 

information, maintains electronic and hard-copy records, and provides 

electronic records to [the Department] in a form that is convenient and 

easy for [the Department] to manage. These paragraphs also describe 

 

3 Paragraph 5 of the SOW provides: “SmartCOM shall retrieve and process incoming 

Routine Mail and process said mail as outlined herein within twenty-four (24) hours upon receipt, 

with the exception that for the first sixty (60) days of the Agreement[,] mail processing shall be 

accomplished within five (5) days of receipt.” (R.R. at 10a.)
4

services that SmartCOM provides to [the Department] to enable [the 

Department] to access and review scanned mail.

. . . .

10. SmartCOM does not share the information described in paragraphs 

6 through 11 of the [SOW] with anyone other than the senior officers 

of SmartCOM: myself, Jonathan Logan, and Justin Scott. These 

officers are each obligated by contract and by fiduciary duties to 

maintain the secrecy of this information.

11. The information described in paragraphs 6 through 11 of the 

[SOW] is not publicly available. The Agreement is SmartCOM’s first 

agreement whereby SmartCOM provides postal mail conversion and 

delivery services through the processes and mechanisms described in 

paragraphs 6 through 11 of the [SOW]. When SmartCOM executed the 

Agreement, it informed [the Department] that the Agreement included 

trade secret and confidential, proprietary information and requested to 

be notified of any public records request for the Agreement or any of 

its exhibits. SmartCOM also requested that the information described 

in paragraphs 6 through 11 of the [SOW] be redacted before being 

posted on any public forum.

12. SmartCOM has spent significant time and money developing and 

refining the processes and mechanisms described in paragraphs 6 

through 11 of the [SOW].

13. The information described in paragraphs 6 through 11 of the 

[SOW] derives independent economic value, both actual and potential, 

from not being generally known to and not being readily ascertainable 

by proper means by other persons. The processes and mechanisms 

described in paragraphs 6 through 11 of the [SOW] allow SmartCOM

to efficiently perform the tasks required by the Agreement.

14. The disclosure of the information described in paragraphs 6 

through 11 of the [SOW] would cause substantial harm to SmartCOM’s 

competitive position in the market. With the information, processes 

and mechanisms described in paragraphs 6 through 11 of the [SOW], 

SmartCOM’s competitors could avoid spending the time and money 

that SmartCOM spent to develop and refine the processes and 

mechanisms. Further, SmartCOM’s competitors could use the 

information to copy more than just SmartCOM’s general product and 
5

services—the competitors could use the exact processes created and 

used by SmartCOM.

(Logan Declaration, R.R. at 24a-26a.)4

Based upon the Declaration, SmartCOM asserted in its position statement that 

it satisfied its burden of demonstrating the redacted information was confidential, 

proprietary information and/or trade secrets. Specifically, it shows, according to 

SmartCOM, that the redacted information was held in confidence by only three 

senior officers, and that competitors would copy the methods and processes that 

SmartCOM invested a significant amount of time and money in developing, which 

the competitors could unfairly avoid. (R.R. at 22a-23a.) In a footnote, SmartCOM 

noted that, although “[t]he argument was not raised in the appeal, [] even if the 

Agreement qualifies as the type of financial record that may not be withheld from 

disclosure on the basis of the trade secret exemption, the SOW retains the benefit of 

the exemption,” citing this Court’s holding in Global Tel*Link Corp. v. Wright, 147 

A.3d 978 (Pa. Cmwlth. 2016), in which the Court held that a document attached to 

a contract does not automatically transform into a financial record subject to 

disclosure under the RTKL. (R.R. at 21a.)

Based upon the parties’ submissions and the OOR’s in camera review of the 

redacted paragraphs, which was performed at the request of Requester, the OOR 

issued its Final Determination granting Requester’s appeal. The OOR did not 

address whether the SOW should be disclosed as a financial record. Instead, the 

OOR considered only whether the redacted paragraphs were subject to redaction 

under one of the specified exemptions. The OOR explained that even if the redacted 

paragraphs were not responsive to the Request, the RTKL does not permit redaction 

 

4 Pages 2 and 3 of the Declaration are out of order in the Reproduced Record.
6

of a responsive record because some of the content is nonresponsive; rather, the 

redactions must be made pursuant to a recognized exemption. (Final Determination 

at 4 n.4.) The OOR also found the redacted paragraphs were neither confidential, 

proprietary information nor trade secrets. While it found SmartCOM took 

reasonable measures to maintain the confidence of the information, the Declaration 

by Logan was “not sufficient to show that disclosure would cause competitive harm 

or that the [SOW] possesses independent economic value.” (Id. at 8.) The OOR 

noted that generic or conclusory statements are alone insufficient to satisfy an 

agency’s burden of proving an asserted exemption. Here, the OOR found that the 

Logan Declaration “largely parrots the language of the test [for confidential, 

propriety information], only noting in addition that the processes in the redacted 

paragraphs ‘allow SmartCOM to efficiently perform the tasks required by the 

Agreement’ and that competitors could copy SmartCOM’s processes and thereby 

save money developing their own.” (Id. at 9.) The OOR found this failed “to show 

that there is competition in the relevant market or that there is an actual likelihood 

of substantial competitive injury if the information is released.” (Id.) In addition, 

the OOR found the Declaration did “not adequately describe the value of the 

information to the business or any competitors, the amount of money or effort

expended in developing the information, or the difficulty any competitors would 

have in duplicating it,” and, as a result, the test for trade secrets also was not met. 

(Id.)

The OOR further found that its in camera review did not substantiate 

SmartCOM’s claims, stating:

As [] Logan attests, paragraphs 6 to 11 of the [SOW] describe the 

efforts that SmartCOM and the Department must undertake to fulfill 

the contract requirements, as well as the requirements the Department 
7

has for electronic systems. Paragraph 6 consists of specific instructions 

for how the Department should provide SmartCOM with housing data; 

Paragraph 7 describes the digital mail files to be provided to the 

Department; Paragraph 8 governs SmartCOM’s retention of the 

original mail documents; Paragraph 9 describes file aggregation; 

Paragraph 10 describes the requirements for an electronic application; 

and Paragraph 11 provides for the distribution of certain hardware to 

the Department. While these paragraphs contain details regarding the 

Department’s feature requirements for electronic systems and 

specifications for how SmartCOM will provide the Department with 

certain information, they contain nothing in the way of propriety 

technical data or techniques for processing mail. Further, given the 

level of personalization required by the Department, it is not apparent 

that there is any broader competitive market for this information. 

Therefore, because SmartCOM’s attestation does not demonstrate the 

economic value or competitive harm arising from the redacted 

paragraphs, and because the OOR could not independently discern any, 

SmartCOM has not demonstrated that the contract may be redacted 

under Section 708(b)(11) of the RTKL.

(Id. at 9-10.) 

Accordingly, the OOR granted Requester’s appeal and ordered the 

Department to produce an unredacted copy of the SOW within 30 days. (Id. at 10.) 

B. Proceedings before this Court

SmartCOM now petitions for review of the Final Determination. Subsequent 

to filing its Petition for Review, SmartCOM also filed an Application for Relief in 

the Nature of a Motion to Supplement the Record, wherein it sought to invoke this 

Court’s de novo review by providing an affidavit of Logan (Affidavit). The 

Affidavit, SmartCOM claimed, addresses all of the OOR’s concerns and supplies 

additional details relative to SmartCOM’s position. When no response or objection 

was received from Requester, the Court granted SmartCOM’s application and 

accepted the Affidavit. (See April 23, 2019 Order.)
8

In the Affidavit, Logan explained the history of SmartCOM and its 

development of the MailGuardTM system in 2016 as a means of eliminating postal 

mail in the corrections setting, thereby improving efficiency and security. (Affidavit 

¶¶ 4-13, R.R. at 41a-42a.) According to Logan, MailGuard is used in correctional 

facilities across the country and a number of other companies have sought to enter 

the business and compete with SmartCOM for contracts. (Id. ¶¶ 16-20, R.R. at 43a.) 

The Affidavit further detailed the Agreement between SmartCOM and the 

Department, to which the SOW was attached as an exhibit. As to the redacted 

paragraphs, the Affidavit provides, in pertinent part, as follows:

40. The [p]rotected [p]aragraphs include details about SmartCOM’s 

propriety and secret method and process of scanning mail and providing 

electronic copies to corrections institutions.

41. Generally speaking, and for purposes of understanding and context, 

the [p]rotected [p]aragraphs describe how SmartCOM reviews and 

organizes information, maintains electronic and hard-copy records, and 

provides electronic records to [the Department] in a form that is 

convenient and easy for [the Department] to manage.

42. The [p]rotected [p]aragraphs also describe services that SmartCOM

provides to enable institution access and review of scanned material.

43. The [p]rotected [p]aragraphs provide as follows:

a. Protected [p]aragraph 7 provides for SmartCOM to scan 

routine mail and prepare electronic files based on a specified 

protocol.

b. Protected [p]aragraph 8 provides specified retention time 

periods for SmartCOM to retain routing mail.

c. Protected [p]aragraph 9 provides for how SmartCOM will 

aggregate, sort, and organize scanned routine mail.
9

d. Protected [p]aragraph 10 provides for SmartCOM to host a 

web application for [the Department] to access and use with 

certain specified capabilities and features.

e. Protected [p]aragraph 11 provides for “Mail Carts,” including 

the number and types of carts, electronic connections between 

the carts and systems, storage of information obtained on the 

carts, web applications for viewing and downloading of 

information obtained on the carts, tracking and auditing of cart 

information, and cart maintenance and repair.

44. It is not possible to provide further details beyond the above 

without disclosing SmartCOM’s confidential and secret intellectual 

property.

(Id. ¶¶ 40-44, R.R. at 46a-47a.)

The Affidavit described the steps SmartCOM takes to ensure the redacted 

information is kept confidential, including allowing access to only three senior 

officers and counsel, all of which have contractual and fiduciary duties of 

confidentiality, electronic and security protocols, and computer password, 

cybersecurity measures, and physical file security measures. (Id. ¶¶ 45-50, R.R. at 

47a.) According to Logan, SmartCOM informed the Department of the confidential 

nature of the information and requested it be notified of any RTKL requests seeking 

access to the Agreement and its parts and “specifically requested that the 

[Department] redact the [p]rotected [p]aragraphs before disclosing the Agreement 

publicly.” (Id. ¶¶ 59-60, R.R. at 48a.) 

In terms of harm that SmartCOM would suffer from disclosure, the Affidavit 

provided as follows:

63. SmartCOM’s ability to compete in the corrections mail elimination 

marketplace largely depends on its ability to protect its unique blend of 

the MailGuard system (a special and unique mix of technology, 

products, and service offerings) and its associated pricing structure.
10

64. If SmartCOM’s proprietary information depicted in the [p]rotected 

[p]aragraphs was disclosed, it would undermine SmartCOM’s 

competitive position.

65. Indeed, public disclosure will allow one, some, or all of 

SmartCOM’s competitors to adjust their own mail solutions and price 

offerings to undercut and undermine SmartCOM’s market position in 

the country-wide corrections technology marketplace.

66. Specifically, competitors could steal SmartCOM’s proprietary 

blend of technology, offerings, and pricing by simply copying it, 

slightly adjusting it, or otherwise refining their own products, services, 

and pricing to try to match or outbid SmartCOM in future contracting 

scenarios based on insights unfairly gained from SmartCOM.

67. A competitor could make minor adjustments to any of the items 

SmartCOM promised to [the Department] in the [p]rotected 

[p]aragraphs, or it could match SmartCOM’s offering but slightly 

undercut SmartCOM’s pricing.

68. Such minor adjustments could make all the difference between 

SmartCOM or a competitor obtaining a future contract or contracts. 

69. Competitors could unfairly take advantage of SmartCOM’s 

experience and significant investments in developing its proprietary 

information without having to make such investments or develop such 

experience on their own.

70. Competitors also could use the information gained to attempt to 

falsely or otherwise improperly or unfairly disparage SmartCOM

and/or MailGuard.

71. Improper access by competitors to SmartCOM’s proprietary 

information will also give competitors insights on SmartCOM’s global 

strategies that it deploys for all contracting scenarios for incoming mail 

elimination.

72. Competitors could learn from this SmartCOM information and then 

use that information to undercut SmartCOM in future bidding 

scenarios.

73. This will unfairly tilt the competitive playing field in favor of 

SmartCOM’s competitors and against SmartCOM, as SmartCOM does 
11

not have its competitors’ equivalent of the information in the 

[p]rotected [p]aragraphs.

74. Disclosure of the [p]rotected [p]aragraphs thus would cause 

substantial harm to SmartCOM’s competitive position in the 

marketplace.

75. Indeed, since SmartCOM is exclusively in the business of 

corrections technology solutions, and MailGuard is a major part of 

SmartCOM’s business, disclosure of the [p]rotected [p]aragraphs could 

be devastating to SmartCOM’s competitive position.

(Id. ¶¶ 63-75, R.R. at 49a-50a.)

In addition, the Affidavit states the redacted information “has independent 

economic value because, if disclosed, it would furnish competitors with solid 

parameters by which they could refine their own strategies as part of their efforts to 

win businesses away from SmartCOM or otherwise cause SmartCOM to lose out in 

the marketplace.” (Id. ¶ 79, R.R. at 51a.) This would be achieved, the Affidavit 

states, by competitors copying SmartCOM’s intellectual property and adjusting their 

own products without having to invest any time, money, or energy. (Id. ¶¶ 76-78, 

R.R. at 50a-51a.) Logan reiterated in the Affidavit what he said in the Declaration: 

that SmartCOM invested significant time, capital, and effort to develop its product

and refine it over time. (Id. ¶¶ 81-83, R.R. at 51a.) Finally, the Affidavit states that 

the specifics of the MailGuard system are not known by competitors and, therefore, 

cannot be duplicated. (Id. ¶¶ 84-85, R.R. at 52a.) 

Following the filing of SmartCOM’s brief in support of its petition for review, 

Requester filed two applications. The first application seeks to supplement the 

record (Application to Supplement) with two documents: (1) a copy of the 

Agreement between the Department and SmartCOM; and (2) a copy of Terms and 

Conditions, which were an exhibit to the Agreement, similar to the SOW. According 
12

to the Application to Supplement, Requester obtained the documents in a separate 

RTKL request filed with the Department subsequent to the OOR’s Final 

Determination. (Application to Supplement ¶ 8.) The second application requests 

that this Court conduct an in camera review of the redacted paragraphs, as the OOR 

did (Application for In Camera Review). SmartCOM opposes both Applications. 

With regard to the Application to Supplement, SmartCOM argues the documents 

have not been authenticated, it would be prejudiced by their consideration because 

SmartCOM had already filed its brief, and it disagrees the documents constitute the 

contract. With regard to the Application for In Camera Review, SmartCOM

contends the Court generally does not conduct in camera reviews unless there is an 

assertion of attorney-client privilege or predecisional deliberations, neither of which 

is at issue here, it would suffer prejudice, and the agency, not a third party, provides 

the records. 

On August 5, 2019, the Court issued an order directing consideration of the 

Requester’s applications with the merits. As briefing is now complete, SmartCOM’s 

Petition for Review and Requester’s Application to Supplement and Application for 

In Camera Review are ripe for consideration. 

II. PARTIES’ ARGUMENTS

On appeal,5 SmartCOM argues its MailGuard system is protected as 

confidential, proprietary information and/or trade secrets. SmartCOM asserts it met 

its burden of showing that the information is kept in confidence and would cause 

substantial competitive harm if released, thus qualifying it as confidential, 

proprietary information. It notes that the OOR found that SmartCOM took steps in 

 

5 Our standard of review is de novo and our scope of review is plenary. Bowling v. Office 

of Open Records, 75 A.3d 453, 477 (Pa. 2013).
13

maintaining the confidentiality of the redacted information, as only three senior 

officers and counsel had access to it. Thus, according to SmartCOM, the only issue 

is the harm that would result from disclosure. SmartCOM asserts it has shown it 

would suffer competitive harm in this highly competitive market because it invested 

significant time, money, and effort to develop the MailGuard system, and disclosure 

of the redacted information would allow competitors to do the same without any 

such investment. SmartCOM argues this Court has held the exemption in Section 

708(b)(11) protects similar information in other cases. In support of this argument, 

SmartCOM cites to Crouthamel v. Department of Transportation, 207 A.3d 432 (Pa. 

Cmwlth. 2019), in which this Court found the exemption applicable to prices, supply 

quantities, and asphalt mix; Smith on behalf of Smith Butz, LLC v. Pennsylvania 

Department of Environmental Protection, 161 A.3d 1049 (Pa. Cmwlth. 2017), in 

which the Court applied the exemption to protect information of a natural gas drilling 

diagnostic company; Thirty, Inc. v. Smart (Pa. Cmwlth., No. 805 C.D. 2013, filed 

April 14, 2014), in which the Court held hotel pricing information was protected by 

the exemption; and Giurintano v. Department of General Services, 20 A.3d 613 (Pa. 

Cmwlth. 2011), in which the Court concluded names of interpreters providing 

translation services were protected by the exemption. In addition, SmartCOM 

argues the redacted information constitutes trade secrets, which are also exempt from 

disclosure. SmartCOM asserts it has shown that the information is not known to 

outsiders and is only known to three officers within SmartCOM, is closely held in 

confidence, is valuable to competitors, was developed after significant investment 

of time, money, and sweat equity, and cannot be duplicated. Accordingly, 

SmartCOM asks the Court to reverse the OOR’s Final Determination and order that 

the Department need not take further action.
14

Requester responds that because the SOW deals with an agency’s acquisition 

of services, it is considered a financial record under the RTKL and, as a result, even 

if the information is otherwise confidential, proprietary information or a trade secret, 

it is still subject to disclosure, citing Section 708(c) of the RTKL and the Supreme 

Court’s holding in Department of Public Welfare v. Eiseman, 125 A.3d 19 (Pa. 

2015). Requester distinguishes this Court’s decision in Global Tel*Link on the basis 

that Global Tel*Link involved records to show the financial stability of a bidder, 

whereas here, the issue is the provision of goods or services directly. Requester also 

argues that the Department’s response to the Request supports the conclusion the 

SOW is part of the contract between the Department and SmartCOM. Requester

notes he requested “the portion of the contract with Smart[COM]” that provides for 

the amount of time SmartCOM has to process mail, and in response the Department 

provided the redacted SOW, which shows the Department considered it a contract 

for services, which constitutes a financial record under the RTKL. (Requester’s 

Brief (Br.) at 16 (quoting R.R. at 9a) (emphasis added).) Requester also points out 

that SmartCOM itself acknowledges the redacted paragraphs describe services that 

SmartCOM provides to the Department. Because the SOW is a financial record and 

neither confidential, proprietary information nor trade secrets are an enumerated 

exception to financial records, Requester argues the SOW should be disclosed in its 

entirety. 

Even if the SOW is not considered a financial record subject to disclosure, 

Requester argues, SmartCOM has not met its burden of showing the redacted

information constitutes confidential, proprietary information. Requester contends

the redacted information was not “received” by the Department, meaning 

SmartCOM developed it and provided it to the Department, as the RTKL requires, 
15

but was developed in conjunction with the Department to serve the Department’s 

specific needs. Therefore, since the SOW tailors SmartCOM’s services to the 

Department’s needs, Requester disputes SmartCOM’s assertions that its ability to 

compete in the market depends on maintaining the confidence of the information. 

Moreover, Requester contends the Declaration and Affidavit are general and 

conclusory, and such statements are, under the law, insufficient. In addition, 

Requester argues SmartCOM has not met the test for trade secrets. According to 

Requester, there is no evidence that the redacted information is the type of 

information generally protected as a trade secret, such as a formula or compilation 

of data. Requester also notes that since the information was just recently developed, 

“it is unsurprising that this information is not widely[] known either within the 

company or outside the company.” (Requester’s Br. at 27.) Furthermore, Requester

argues the record is devoid of any evidence of SmartCOM’s corporate structure or 

internal functioning, which is necessary to assess “whether this level of secrecy or 

lack of knowledge within the workforce is typical[] or indicative of information 

amounting to a trade secret.” (Id.) According to Requester, “[i]t seems 

unremarkable that only senior officers in a company would be privy to the 

contractual negotiations and contractual documents entered into by that company.” 

(Id.) Similarly, Requester argues SmartCOM only provided general allegations 

about the money and time it expended, and there is no evidence of the ease or 

difficulty in duplicating the information. As SmartCOM failed to satisfy its burden 

of proving the redacted information is confidential, proprietary information and/or 

trade secrets, Requester asks the Court to affirm the Final Determination of the OOR 

and direct the Department to provide an unredacted copy of the SOW.
16

In its reply brief, SmartCOM asserts that the fact the SOW was appended to 

the Agreement does not transform the SOW into a financial record and cites Global 

Tel*Link for support of that proposition. SmartCOM argues the Agreement sets out 

the parties’ mutual promises, “[o]r, in RTKL ‘financial record’ terms,” the 

“‘Agreement’ . . . is the ‘contract’ dealing with ‘disbursement of funds by an 

agency,’” whereas the SOW describes how SmartCOM will furnish the scanned mail 

to the Department. (SmartCOM’s Reply Br. at 2 (quoting Section 102 of the RTKL, 

65 P.S. § 67.1026).) SmartCOM reiterates that it has satisfied its burden of proving 

the asserted exemption. It notes Requester has not submitted any evidence to rebut 

SmartCOM’s evidence and asserts Requester is “attempt[ing] to elevate 

Smart[COM]’s burden of proof.” (Id. at 6.) It contends it has no obligation to 

provide corroborating documents to support its claims, as the courts have recognized 

that affidavits alone will suffice for a party to meet its burden. SmartCOM also 

denies its Declaration and/or Affidavit are general or conclusory, asserting its 

evidence is similar to evidence accepted by the Court in other cases. SmartCOM 

asserts many of Requester’s arguments “rely on the OOR’s unfounded guesswork,” 

explaining that “[t]he OOR speculated that the [p]rotected [p]aragraphs contain 

‘nothing in the way of proprietary technical data or techniques for processing mail’” 

and “imagined that a ‘level of personalization [was] required by the Department,’” 

which is unsupported by any evidence. (Id. at 8 (quoting Final Determination at 

10).) According to SmartCOM, Requester “ignores” that the OOR found 

SmartCOM took reasonable steps to maintain the redacted information in 

confidence. (SmartCOM’s Reply Br. at 8.) SmartCOM also argues there is no 

 

6 SmartCOM cited Section 101 of the RTKL, 65 P.S. § 67.101, but that provision relates 

to the short title of the statute. Section 102 contains the definition of financial record that 

SmartCOM quotes. 
17

evidence it collaborated with the Department to develop the information in the SOW; 

even if the information is newly developed, it does not mean it is not protected 

intellectual property; and there is no explanation how disclosure of SmartCOM’s 

intellectual property will promote government accountability, one of the purposes 

behind the RTKL. 

III. DISCUSSION

“[T]he objective of the [RTKL] . . . is to empower citizens by affording them 

access to information concerning the activities of their government.” SWB Yankees 

LLC v. Wintermantel, 45 A.3d 1029, 1042 (Pa. 2012.) Thus, with this purpose in 

mind, we must “liberally construe the RTKL to effectuate its purpose of promoting 

‘access to official government information in order to prohibit secrets, scrutinize 

actions of public officials, and make public officials accountable for their actions.’” 

Levy v. Senate of Pennsylvania, 65 A.3d 361, 381 (Pa. 2013) (quoting Allegheny Cty.

Dep’t of Admin. Servs. v. A Second Chance, Inc., 13 A.3d 1025, 1034 (Pa. Cmwlth. 

2011)). 

Pursuant to Section 305(a) of the RTKL, “[a] record in the possession of a 

Commonwealth agency or local agency shall be presumed to be a public record.” 65 

P.S. § 67.305(a). However, the RTKL exempts certain information from disclosure. 

Among a number of enumerated exceptions are confidential proprietary information 

and trade secrets. 65 P.S. § 67.708(b)(11). The term “[c]onfidential proprietary 

information” is defined as:

Commercial or financial information received by an agency:

(1)which is privileged or confidential; and
18

(2)the disclosure of which would cause substantial harm to the 

competitive position of the person that submitted the 

information. 

65 P.S. § 67.102. 

The term “[t]rade secret” is defined as:

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 readily 

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. 

Id. We generally examine six factors to determine whether information constitutes 

a trade secret: 

(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 [an 

individual’s] 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.

W. Chester Univ. of Pa. v. Schackner, 124 A.3d 382, 392 n.15 (Pa. Cmwlth. 2015).

“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.” Pa. Dep’t of Educ. v. Bagwell, 114 A.3d 1113, 1122 (Pa. Cmwlth. 

2015). The party asserting the exemption bears the burden of proving the record is 
19

exempt by a preponderance of the evidence. 65 P.S. § 67.708(a). “The 

preponderance of the evidence standard, which is ‘the lowest evidentiary standard, 

is tantamount to a more likely than not inquiry.’” Smith Butz, 161 A.3d at 1059 n.10. 

It is well settled that “[a]n agency may meet its burden through an unsworn 

attestation or a sworn affidavit.” Schackner, 124 A.3d at 393. However, the affidavit 

or attestation “must be specific enough to permit this Court to ascertain how 

disclosure . . . would reflect that the records sought fall within the proffered 

exemptions.” Id. “[C]onclusory affidavits, standing alone, will not satisfy the 

burden of proof.” Office of the Dist. Att’y of Phila. v. Bagwell, 155 A.3d 1119, 1130 

(Pa. Cmwlth. 2017). Moreover, “an affidavit which merely tracks the language of 

the exception it presupposes is insufficient to demonstrate that the responsive 

records are exempt from disclosure.” Pa. State Police v. Muller, 124 A.3d 761, 765 

(Pa. Cmwlth. 2015).

Before determining whether the redacted paragraphs at issue here are 

confidential, proprietary information and/or trade secrets, we must first determine 

whether the SOW in which the redacted paragraphs appear is a financial record, as 

Requester contends. If the SOW is a financial record, the exception in Section 

708(b)(11) of the RTKL does not apply, as redactions to financial records may only 

be made pursuant to certain enumerated exceptions, and Section 708(b)(11) is not 

one of those exceptions.

7

 65 P.S. § 67.708(c). 

The RTKL defines “[f]inancial record” as:

(1) Any account, voucher or contract dealing with:

(i) the receipt or disbursement of funds by an agency; or

 

7 Section 708(c) provides, in relevant part, “[t]he exceptions set forth in subsection (b) shall 

not apply to financial records, except that an agency may redact that portion of a financial record 

protected under subsection (b)(1), (2), (3), (4), (5), (6), (16), or (17). . . .” 65 P.S. § 67.708(c).
20

(ii) an agency’s acquisition, use or disposal of services, supplies, 

materials, equipment or property[; or]

(2) The salary or other payments or expenses paid to an officer or 

employee of an agency, including the name and title of the officer or 

employee[; or]

(3) A financial audit report. The term does not include work papers 

underlying an audit.

65 P.S. § 67.102. It is under this first part of this definition that Requester claims 

the SOW falls. According to Requester, the SOW is a contract that deals with the 

Department’s acquisition or use of services. SmartCOM acknowledges the SOW 

was appended to the Agreement it had with the Department, but contends that, 

pursuant to Global Tel*Link, that alone does not transform the SOW into a contract. 

In Global Tel*Link, the record at issue was information about the financial 

well-being of a bidder that was attached to the contract to demonstrate the bidder 

had the financial strength to perform the contract. 147 A.3d at 981. We held that 

this financial information did “not automatically become a contract merely because 

[the Department] attache[d] it to the subsequently executed contract.” Id. Instead, 

we examined the record itself to determine its status. There, we examined the 

financial information and determined it “did not involve the disbursement of funds 

or the acquisition of services. Rather, the [f]inancial [i]nformation was submitted to 

show [the bidder]’s economic capability to perform should it receive the . . . 

contracts.” Id. Thus, we agree with SmartCOM that the mere fact the SOW was 

appended to the Agreement does not automatically transform it into a financial 

record. Id. However, this is not Requester’s argument. Requester argues the SOW 

is subject to disclosure under subsection (1)(ii) of the financial record definition as 

a “contract dealing with . . . an agency’s acquisition, use or disposal of services, 
21

supplies, materials, equipment or property.” 65 P.S. § 67.102(1)(ii). Requester’s 

argument in this regard is twofold. First, Requester argues that the Request sought 

“the portion of the contract with Smart[COM]” that provides for the amount of time 

SmartCOM has to process mail, (R.R. at 9a), to which the Department responded by

providing a redacted copy of the SOW. Therefore, the Department acknowledged 

the SOW is part of the contract by producing it. Second, Requester argues that an 

examination of the SOW’s content reveals it is part of a contract for the acquisition 

of services. 

SmartCOM focuses on subsection (1)(i) of the definition, dealing with the 

receipt and disbursement of funds, which is also the subsection discussed by the 

majority of the case law examining the definition of financial records. For example, 

our Supreme Court explained “records bearing a sufficiently close connection to 

such ‘fiscally related’ categories,” such as accounts, vouchers, and contracts, are 

financial records “so long as they also ‘deal with the receipt or disbursement of funds 

by an agency.’” City of Harrisburg v. Prince, 219 A.3d 602, 612 (Pa. 2019) (quoting 

LaValle v. Office of Gen. Counsel, 769 A.2d 449, 456 (Pa. 2001), and N. Hills News 

Record v. Town of McCandless, 722 A.2d 1037, 1039 (Pa. 1999)). However, the 

Supreme Court also recognized that the term also encompassed accounts, vouchers, 

and contracts themselves. Id. It further stated, as prior cases have, that the 

definition of financial record is “broad.” Id. 

Therefore, while there is no discussion of the receipt or disbursement of funds

in the SOW, our inquiry does not stop there. We must also examine whether the 

record is an “account, voucher, or contract dealing with . . . an agency’s acquisition, 

use or disposal of services, supplies, materials, equipment or property,” which is a 

second prong of the definition. 65 P.S. § 67.102(1)(ii). We agree with Requester
22

that the SOW is a financial record. Although SmartCOM denies the SOW is part of 

the Agreement with the Department, the Department clearly thought otherwise 

because it produced a copy of the SOW, in response to the Request seeking “the 

portion of the contract with Smart[COM]” that provides for the amount of time 

SmartCOM has to process mail. (R.R. at 9a (emphasis added).) 

In addition, a review of the SOW, a redacted copy of which appears in the 

record, supports this conclusion. The SOW begins by stating that the Department 

“requires an offsite solution for the receipt and processing of inmate postal mail” 

and “SmartCOM in providing the solution shall meet the following requirements.” 

(R.R. at 10a (emphasis added).) The SOW then lists a number of requirements that 

SmartCOM must satisfy, including providing equipment and support services, how 

to handle certain mail, its operational processing will mirror the United Postal 

Service’s schedule, its obligation to maintain a mailbox, and the timeframe in which 

SmartCOM has to process mail, which is the information Requester sought in the 

Request. (Id. at 10a.) Although several paragraphs are redacted, from the 

unredacted portions of those paragraphs, the SOW also provides information on how 

the Department is to provide SmartCOM with certain information and outlines 

retention policies and scanning procedures. (Id.) In addition, it states SmartCOM 

will provide training on its web application, and it sets out the security standards 

with which SmartCOM shall comply. (Id. at 11a-12a.) Finally, it sets forth 

procedures upon termination or completion of the Agreement. (Id. at 12a.) These 

appear to be additional terms of the contract between the Department and 

SmartCOM.

Given the Department’s implicit acknowledgement that the SOW was a 

“portion of the contract with Smart[COM]” that provides for the amount of time 
23

SmartCOM has to process mail, (R.R. at 9a), and the broad definition of “financial 

record” as recognized by the Supreme Court in Prince, we conclude the SOW is a 

part of a “contract dealing with . . . [the Department]’s acquisition, use or disposal 

of services, supplies, materials, equipment or property,” 65 P.S. § 67.102(1)(ii),

namely SmartCOM’s MailGuard system. These provisions set forth the services 

SmartCOM is to provide to the Department to fulfill its Agreement. Thus, it is a 

financial record subject to disclosure. 

IV. CONCLUSION

Having concluded that the SOW is a financial record under the RTKL, it is 

not necessary to consider SmartCOM’s argument that the exception in Section 

708(b)(11) related to confidential, proprietary information or trade secrets applies 

because that exception is not one of the enumerated exceptions that may be redacted 

from financial records. 65 P.S. § 67.708(c). As the court stated in Eiseman, “[w]ith 

regard to such financial records, it is essentially undisputed that Section 708(c) 

renders the [RTKL]’s own internal trade-secrets/confidential-proprietaryinformation exception inapplicable.” 125 A.3d at 32. Furthermore, unlike in 

Eiseman, there is no assertion by SmartCOM that the redacted information is also 

protected by Pennsylvania’s Uniform Trade Secrets Act.8 

 

8 12 Pa.C.S. §§ 5301-5308.
24

In addition, because it is unnecessary to examine the Agreement or the Terms 

and Conditions, Requester’s Application to Supplement is denied. Finally, 

Requester’s Application for In Camera Review is dismissed as moot.

9

_____________________________________

RENÉE COHN JUBELIRER, Judge

 

9 Although a review of the unredacted SOW is unnecessary given our disposition, we note 

that all records reviewed by the agency, even in camera, are considered part of the certified record, 

although they may be sealed and filed separately. SmartCOM, which objects to our in camera

review of the unredacted SOW, appears to misapprehend our prior decisions declining to review 

records in camera. In those instances, we were asked to review records that had not been reviewed 

by the OOR and were not part of the certified record. Here, in contrast, the OOR already conducted 

an in camera review of the records. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Smart Communications Holding, Inc., :

Petitioner :

 :

v. : No. 80 C.D. 2019

 : 

Bruce Wishnefsky, :

Respondent :

O R D E R

NOW, July 6, 2020, the Final Determination of the Office of Open Records, 

dated December 27, 2018, is AFFIRMED. The Application to Supplement the 

Record filed by Respondent Bruce Wishnefsky (Requester) is DENIED.

Requester’s Application for In Camera Review is DISMISSED AS MOOT.

_____________________________________

RENÉE COHN JUBELIRER, Judge