IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania, : Department of Transportation, :

Petitioner :

:
v. : No. 246 C.D. 20 1 6

: Argu ed: September 15 , 20 1 6 Walsh/Granite JV, :

Respondent :

BEFORE: HONORABLE P ATRICIA A. McCULLOUGH, Judge

HONORABLE J OSEPH M. COSGROVE, Judge HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY SENIOR JUDGE PELLEGRINI FILED: October 31, 2016

The Commonwealth of Pennsylvania, Depart ment of Transportation (PennDOT) petitions for rev iew of a Final Determination of t he Office of Open Records (OOR) granting in part and denying in part Walsh/Granite JV’s (Requestor) request seeking copies of all bids submitted to PennDOT to repair or maintain structurally deficient bridges in Pennsylvani a pursuant to the Right

- to

Know Law (RTKL)

. 1

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

– 67.3104.2 I.

A.

Under the RTKL
, information is only subject to disclosure if it is a

“ public record .” Excluded from the RTKL definition of “ public record ” is information exempted from disclosure by any other law. See 65 P.S. § 67.102; see
also 65 P.S. § 67.305. While normally after the conclusion of the bidding process all proposal s and bids are potential public records under the RTKL, 2 t he issue in

this case is whether Section 9111 of the Public

- Private Transportatio n Partnership Law (P3 Law)
, 3 74 Pa.C.S. § 9111
, exempts unsuccessful proposal s from

disclosure because it only specifically provides for the disclosure of the successful

2 Section 708(b)(26) of the RTKL provides an exemption to the disclosure of certain proposals and bids pertaining to the bidding process :

(b) Exceptions.

-- Except as provided in subsections (c) and (d ), the following are exempt from access by a requester under this act:

***

(26) 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 for bid or request for proposals to demonstrate the bidder ’ s or offeror ’ s economic capability; or the identity of 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).

3 Public

- Private Transportation Partnership Law (P3 Law), 74 Pa.C.S. §§ 9101

- 9124.3

proposal and then lists exemptions

. Specifically, Section 9111 of the P3 Law provides :

(1) Upon the selection of a development entity to be a

party to a Public

- Private transportation partnership agreement, the identity of the development entity selected, the contents of the response of the development entity to the request for proposals, the final proposal submitted by the development entity and the form of the Public

- Private transportation partnership agreement shall be made public. Any financial information of a development entity that was requested in the request for proposals or durin g discussions and negotiations to demonstrate the economic capability of a development entity to fully perform the requirements of the Public

- Private transportation partnership agreement shall not be subject to public inspection.

(2) A proprietary public and a private development entity may agree, in their discretion, to make public any information described under paragraph (1) that would not otherwise be subject to public inspection.
(3) If a proprietary public entity terminates a Public

Private transpor tation partnership agreement for default, rejects a private entity on the grounds that the private entity is not responsible or suspends or debars a development entity, the private entity or development entity, as appropriate, shall, upon written request, be provided with a copy of the information contained in the file of the private entity or development entity maintained by the proprietary public entity under a contractor responsibility program.
(4) The following information shall not be public :
(i) In formation relating to proprietary information, trade secrets, patents or exclusive licenses, architectural and engineering plans and4 information relating to competitive marketing materials and strategies.
(ii) Security information, including risk prevent ion plans, detection and countermeasures, emergency management plans, security and surveillance plans, equipment and usage protocols and countermeasures.
(iii) Records considered nonpublic matters or information by the Securities and Exchange Commission under 17 CFR 200.80 (relating to commission records and information).
(iv) Any financial information deemed confidential by the proprietary public entity upon a showing of good cause by the offeror or development entity.
(v) Records prepared or utilize d to evaluate a proposal.

74 Pa.C.S. § 9111 (emphase s added).

B

.

Requestor is a member of the construction joint venture of Plenary Walsh Keystone Partners, LLC which
, in January 2015
, submitted the successful proposal for the Pennsylvania Rapid Bridge Replaceme nt Project (Bridge Replacement) to replace 558 structurally deficient bridges and main tain those bridges for 25 years under the P3 Law. In October 2015, Requestor submitted a RTKL request to PennDOT
, seeking the following :

[Requestor] hereby re quests the Proposals, which consist of both the Technical Proposal and Financial Proposal, of any firm, team or companies that submitted Proposals to [PennDOT] for the Pennsylvania Rapid Bridge Replacement Project, [request for proposals] [(] RFP [)]5 Solicit ation #: 3513R16, however, excluding the Proposal from Plenary Walsh Keystone Partners, LLC., to which [Requestor] is a team member of. Specifically, the firms, teams, or companies [Requestor] seeks the Proposals of include, but are not limited to, the f ollowing:

1. Keystone Bridge Partners

2. Commonwealth Bridge Partners

3. Pennsylvania Crossings.

( Reproduced Record ( R.R. ) at 11a.)

Pen nDOT denied the request
, contending that the RTKL does not apply to unsuccessful proposals because Section 9111 (1) of the P3 Law
, 74 Pa.C.S.
§ 9111(1)
, limits potential public access to only the successful development entity’s proposal , in this case, Reque stor’s consortium. Additionally, it stated that certain portion s of the information contained in the proposals were also exempt
under exception provisions of the RTKL because they contained personal
identification information, trade secrets or confidential proprietary information
, financial information
, and records of the agency evaluation of proposals

. 4
Requesto r appealed that determination to the OOR

.

4 Sections 708(b)(6), 708(b)(11), 708(c) and 708(b)(26) of the RTKL, 65 P.S. §§ 67.708(b )(6), 67.708 (b)(11), 67.708 (c) and 67.708 (b)(26), exclude from disclosure personal identification information, trade secrets or confidential proprietary information, and financial information and records, respectively.6 I I.

Al though Section 9111(1) of the P3 Law
, 74 Pa.C.S. § 9111(1)
, specifically provide s that only the successful proposal is subject to release
, Requestor
, before the OOR
, contended that the P3 Law’s silence as t o disclosure or

non

- dis closu re of unsuccessful bidder s’ proposals means that unsuccessful proposals are not exempt from disclosure and must be disclosed to the same extent

as that of a successful proposal.

In response, PennDOT submitted an affidavit of M ichael R. Bonini,
Director of PennDOT’s Public Private Partnership Office, in which Mr. Bonini

maintained that it is his understanding that all of the proposals were covered by

Section 9111 of the P3 Law, 74 Pa.C.S. § 9111(1)
, and that the parties submitti ng the proposals “expressly agreed during the RFP process that Section 9111(1) was controlling and unsuccessful proposals were not subject to public access.” (R.R. at

31a , ¶9 .) He went on to state that the proposals are:

[V] oluminous and include informa tion relating to proprietary information, trade secrets, patents or exclusive licenses, architectural and engineering plans and information relating to competitive marketing materials and strategies; Security [sic] information, including risk prevention pl ans, detection and countermeasures, emergency management plans, security and surveillance plans, equipment and usage protocols and countermeasures; records that entities might consider nonpublic matters or information by the Securities and Exchange Commiss ion under 17 CFR 200.80 ( relating to commission records and information; and financial information deemed confidential by the proprietary public entity upon a showing of good cause by the offeror or development entity).7

( Id. at ¶10.) He added that even i f the RTKL applies, the unsuccessful proposals contain the following information:

a. Trade secrets and confidential information that was submitted pursuant to the RFP’s terms regarding public access, including information regarding public access, includin g information about deliver ing the [Bridge Replacement] project, obtaining financing and development and implementation of a maintenance plan for a period of 25 years.
b. Financial information, including without limitation information submitted to demonst rate proposers’ financial capacity and financing technology.

c. Contact information, including personal telephone numbers.

d. Information requiring redaction, which necessarily would mean that copy costs would be incurred by [PennDOT].

( Id. at 32a, ¶12 .)

Rejecting PennDOT ’s position that Section 9111(1) of the P3 Law
, 74
Pa.C.S. § 9111(1)
, only requires the successful bidders ’ records to be disclosed , the

OOR held that it was the General Assembly ’s intention in enacting the RTKL to
make the proposals of unsuccessful bidders generally subject to public disclosure
, and that if the legislature wante d to categorically exclude unsuccessful proposals, it would have used language in the P3 Law that explicitly said so. Applying the

RTKL e xceptions rather than those contained in the P3 Law, the OOR found that

unsuccessful bidders ’ personal telephone numbers and financial information8

submitted to demonstrate a bidder’s capacity to perform are facially exempt from disclosure under RTKL Sections 708(b)(6) and (b)( 11), 65 P.S. § § 67.708(b)(6) and (b)(11), respectively, and may be withheld, and unsuccessful bidder ’s confidential proprietary information/trade secrets are exempt from disclosure under Section 9111(4) of the P3 Law
, 74 Pa.C.S. § 9111( 4 )

. PennDOT appeale d.

III

. In this appeal, 5 PennDOT contends that the OOR ’s decision violates
Section 306 of the RTKL, which states that “[n] othing in this act shall supersede or modify the public or nonpublic nature of a record or document established in

Federal or State law, regulation or judicial order or decree

. ” 65 P.S. § 67.30 6

. Citing to Department of Labor and Industry v. Heltzel , 90 A.3d 823, 833 (Pa.

Cmwlth. 2014 ), PennDOT argues that “[o]ther statutes that provide other avenues, and set other parameters for acc ess to records ... operate independently of the

RTKL. Pursuant to Section 3101.1 of the RTKL, [65 P.S. § 67.3101.1,] their procedural hurdles, and exceptions, remain intact and enforceable.” PennDOT claims that the P3 Law expressly provides that only porti ons of successful proposals are subject to access and does not make unsuccessful proposals public

. It claims that because the P3 Law establishes parameters for access to successful proposals, it is in clear conflict with the RTKL.

5 O ur scope of review for a question of law under the RTKL is plenary. Office of the Governor v. Raffle , 65 A.3d 1105, 1109 n. 4 (Pa. Cmwlth. 2013) (quoting Stein v. Plymouth Township , 994 A.2d 1179, 1181 n. 4 (Pa. Cmwlth. 2010)). “A reviewing court, in its a ppellate jurisdiction, independently reviews the OOR ’ s orders and may substitute its own findings of fact for that of the agency.” Bowling v. Office of Open Records , 990 A.2d 813, 818 (Pa. Cmwlth. 2010), affirmed , 75 A.3d 453 ( Pa. 2013).9 Requestor argues that the P3 Law does not conflict at all with the

RTKL. It contends that while the P3 Law only specifically states that the successful proposal must be released, it is silent as to whether the unsuccessful proposals must be released. It argues that we have to look to the RTKL to determine whether unsuccessful proposals are public records. Because Section 708(b)(26) of t he RTKL, 65 P.S. § 67.708(b)(26)
, makes no distinction between successful and unsuccessful proposals and only allows the withholding of any

pr oposal from the public only until the contract has been awarded, that means that

under the P3 Law
, unsuccessful proposals are also public records. We disagree.

The problem with Requestor ’ s position is that it would have us incorporate into Section 9111 of the P3 Law
, which was enacted after the RTKL, Section 708(b)(26) of the RTK L, 65 P.S. § 67.708(b)(26), notwithstanding the very different language in the two provisions as to what is to be released. More fundamentally
, though, t he P3 Law is a standalo ne law that takes the Bridge Replacement project out of the normal Procurement Code process for construction

of public facilities and substitutes a new method for securing public facilities
, including what records are considered public.

Under the Procure ment Code, contracts are output

- based, where the public sector owner identifies the exact outputs required t hrough detailed specifications. 62 Pa.C.S. § 322

. E ach phase of the project is procured separately and multiple contracts pertaining to that phase may be awarded. 62 Pa.C.S. § 517. Contracts are awarded in stages: companies bid on the design; once the design is completed, a contract is awarded for construction; once construction is completed,10

it becomes the public entity’s maintenance responsibil ity. 62 Pa.C.S. §§ 905, 103. Because the Procurement Code process is output

- based, most of the risks associated with normal procurement contracts are assumed by the public sector entity

. Usually
, each project is financed directly by government throug h c apital

contributions or debt

. The RTKL, in general , applies to Procurement Code

records.

The P3 Law presents an alternative method to s et forth in the Procurement Code to build or maintain public infrastructure

. Under the P 3 Law
, procurement of two or more of the project delivery phases can be integrated and

those methods may involve anything from design ing and constructi ng to operating
, maintaining and financing the project

. 74 Pa.C.S. § 9108. Moreover, P3 contracts

have outcome

- based specifications, meaning that the public sector owner specifies

its requirements and the private sector partner determines the b est way to meet
them. See 74 Pa.C.S. § 9110. Typically, in a P3 contract, the public sector partner would be responsible for securing its own financing, with the private sector partner financing the upfront capital costs and then recovering its investment over the term of the P3 agreement

. See 74 Pa.C.S. § 9121. Also, the private sector party assumes substantial financial, technical and operat ional risk
, a nd a Public

- Private Transportation Partnership Board was created to oversee the process and select P3 projects. 74 Pa.C.S. § 9103

.

Just as the procurement processes under the P3 Law are separate from
those used under the Procurement Code, t he public access to records contained in

Section 9111 of the P3 Law are separate and distinct from the RTKL. U nlike the11

RTKL
, which is open ended

— i.e., unless falling within one of the exemptions the information is presumed to be a public record

— Section 9 111 of the P3 Law is

closed

- ended in that it specifies what information must be released
, and if the record is not specified as public, it is not a public record. The P3 Law provides that only the identity of the development entity selected, the contents of the response of the development entity to the request for proposals
, the final proposal submitted by the development entity
, and the form of the Public

- Private
transportat ion partnership agreement be made public. T he exceptions as to what

has to be dis closed under the RTKL and the P3 Law, in some instances
, are
similar

. However, the exceptions under the P3 Law are more expansive in that architectural and engineering plans and information relating to competitive marketing materials and strategies are no t to be made public
, while under the

RTKL
, normally
, they are

. The P3 Law is also more specific in that it denominates what type of materials cannot be released. Moreover, only the private development entity that is the successful proposer can release in formation that is otherwise exempt from disclosure under Section 9111(2) of the P3 Law , 74 Pa.C.S.
§ 9111(2), taking away the normal right of a public contracti ng agency to release

information in its possession if it believe s it to be in the public interes t. 65 P.S. §

67.506

.

Simply
, i f the General Assembly wanted all proposals to be released, it would have said so and not limited the release to only the successful proposal. 6

6 Under the statu tory construction principle expressio unius est exclusio alterius , the inclusion of a specific matter in a statute implies the exclusion of other matters. Atcovitz v. Gulph Mills Tennis Club, Inc.
, 812 A.2d 1218 ( Pa. 2002).12

See He l tzel , 90 A.3d at 832 ( explaining that “a statute should be clear when i t establishes the public nature of records .” ). 7

Accordingly, for the above reasons, we reverse the OOR’s final determination to the extent it concluded that the proposals of the unsuccessful bidders are subject to public disclosure. 8

______________ _____________________ DAN PELLEGRINI, Senior Judge

7 Requestor contends that it i s entitled to an award of recoupment of attorneys’ fees and costs of litigation under Section 1304(a) of the RTKL , 65 P.S. § 67.1304(a), b ecause “PennDOT unreasonably and willfully ignored the depth of case law that has declared bids to be public record. ” (Requestor’s Brief at 19.). Obviously, because we hav e decided this matter in PennDOT ’s favor, the request for counsel fees is denied.

8 We agree
, though
, with the OOR that even if the unsolicited pro posals were public records
, unsuccessful bidders ’ per sonal telephone numbers and financial information submitted to demonstrate a bidder’s capacity to perform and confidential proprietary information/trade secrets are exempt from disclosure under Section 9111(4) of the P3 Law , 74 Pa.C.S. § 9111(4)

.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania, : Department of Transportation, :

Petitioner :

:
v. : No. 246 C.D. 2016

: Walsh/Granite JV, :

Respondent :

O R D E R

AND NOW, this 31 st day of October , 2016, the Final Determination of

the Office of Open Records dated January 19, 2016
, at No. AP 2015

- 2648
, is

reversed

.

___________________________________ DAN PELLEGRINI, Senior JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania, : Department of Transportation, :

Petitioner :

: No. 246 C.D. 201 6

v. :
: Argued : September 15, 2016 Walsh/Granite JV, :

Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JOSEPH M. COSGROVE, Judge HONORABLE DAN PELLEGRINI, Senior Judge

DISSENTING OPINION BY JUDGE McCULLOUGH FILED: October 31, 2016

I respectfully dissent from the Majority’s thoughtful resolution of the narrow issue presented on appeal : whether section 911 1 of the Public

- Private Transportation Partnership Law (P3 Law)
, 1 74 Pa.C.S. § 911 1
, 2 exempts from

1 74 Pa.C.S. § § 9101

— 9124.

2 In its entirety, this section states:

(1) Upon the selection of a development entity to be a party to a public

- private transportation partnership agreement, the identity of the development entity selected, the contents of the response of the development entity to the request for proposals, th e final proposal submitted by the development entity and the form of the public

private transportation partnership agreement shall be made public

. Any financial information of a development entity that was requested in the request for proposals or during d iscussions and negotiations to demonstrate the economic capability of a development entity to fully perform the requirements of the public

- (Footnote continued on next page...)PAM

- 2

(continued...)

private transportation partnership agreement shall not be subject to public inspection

.
(2) A proprietary public an d a private development entity may agree, in their discretion, to make public any information described under paragraph (1) that would not otherwise be subject to public inspection.

(3) If a proprietary public entity terminates a public

- private transportation partnership agreement for default, rejects a private entity on the grounds that the private entity is not responsible or suspends or debars a development entity, the private entity or development entity, as appropriate, shall, upon written r equest, be provided with a copy of the information contained in the file of the private entity or development entity maintained by the proprietary public entity under a contractor responsibility program.

(4) The following information shall not be public :

(i) Information relating to proprietary information, trade secrets, patents or exclusive licenses, architectural and engineering plans and information relating to competitive marketing materials and strategies.

(ii) Security information, including ris k prevention plans, detection and countermeasures, emergency management plans, security and surveillance plans, equipment and usage protocols and
countermeasures.

(iii) Records considered nonpublic matters or information by the Securities and Exchange Co mmission under 17 CFR 200.80 (relating to commission records and information).

(iv) Any financial information deemed confidential by the proprietary public entity upon a showing of good cause by the offeror or development entity.

(v) Records prepared o r utilized to evaluate a proposal.
(Footnote continued on next page...)PAM

- 3

disclosure the proposal s of unsuccessful bidder s made in connection with a bridge project after the Department of Transportation (Department) awarded the contract

. The Majority concludes that section 9111 shields this information from public inspection

. T he objective of the Righ t

- t o

- Know Law (RTKL) 3 “ is to empower citizens by affording them access to information concerning the a ctivities of their government . . . . [T] he enactment of the RTKL in 2008 was a dramatic expansion of the public s ’ access to government documents. ” Levy v. Senate of Pennsylvania
, 65 A.3d 361, 381 (Pa. 2013) (citation and internal quotation marks omitted)

.

“ Whereas before a requester had the burden to prove that documents should be disclosed, the RTKL presumes documents in the possession of an agency are public records subject to disclosure, unless protected by a specific exception. ” Levy , 65 A.3d at 381 (citation omitted)

.

Pursuant to section 305(a)(3) of the RTKL
, a record in the possession of a Commonwealth agency “ shall be presumed to be a public record ” unless “ the record is exempt from disclosure under any other Federal or State law or regulation

(continued...)

74 Pa.C.S. §9111 (emphasis added) . A “[d]evelopment entity” is defined, in relevant part, as “[a] n entity which is a party to a public

- private transportation partnership agreement
, ” and a “[p] ublic

- private trans portatio n partnership agreement” is “ [a] contract for a transportation project which transfers

. . . a transportation facility by a public entity to a development entity for a definite term during which the development entity will provide the transportation projec t to the public entity in return for the right to receive all or a portion of the revenue generated from the use of the transportation facility, or other payment . . . .”

3 Act of Februa ry 14, 2008, P.L. 6, 65 P.S. §§ 67.101

— 67.3104.PAM

- 4

or judicial order or decree. ” 65 P.S. § 67.305(a)(3). 4 “ In order to constitute an exemption under Section 30 5(a)(3) of the RTKL, the

. . . statute must expressly provide that the record sought is confidential, private, and/or not subject to public disclosure

. ” Ali v. Philadelphia City Planning Commission , 125 A.3d 92
, 100 (Pa. Cmwlth. 2015) (en banc) (emphasis added).

S ection 9111 (1) of the P3 Law states that “the final proposal” of the successful bidder (or “ development entity selected ”) “shall be made public
, ” but

also states that certain financial information submi t t ed by the successful bidder “shall not be subject to public inspection.” 74 Pa.C.S. §9111 (1). 5 As the Majority concedes, this provision of the P3 Law pertains to the proposal and financial

information of the successful bidder

– and that bidder only

– after a contract has

been award ed . Maj. slip op. at 2

- 3, 11.

Importantly, section 9111 of t he P3 Law is silent as to whether the proposals of unsuccessful bidders are public or no n

- public records after a contract

h as been awarded: the statute voices no view, makes no suggestion eithe r way , and can only be considered as omitting the topic entirely

. As a natural result of

this void
, section 9111 of the P3 Law does not in any linguistic manner exempt
from disclosure the proposals of the unsuccessful bidders

. T he Majority ’s

determination that the P3 Law renders the proposals of the unsuccessful bidders

untouchable requires adding language into section 9111 of the P3 , which is “contrary to the established precept that it is improper for this Court to supply

4 S ee also section 3 06 of the RTKL, 65 P.S. §67.306 (stating that “[n]othing in the [RTKL] shall supersede or modify the public or nonpublic nature of a record or document established in Federal or State law, regulation or judicial order or decree.” ).

5 The P3 Law also contains a list of other information that “shall not be public,” including trade secrets and the like, but this section is neither applicable nor informative in resolving the issue at hand. See 74 Pa.C.S. §9111 (4 )

.PAM

- 5

legislative omissio ns.” Karoly v. Mancuso , 65 A.3d 301, 309 n.7 (Pa. 2013)

. Tellingly, “it is not for the c ourts to add, by interpretation to a statute, a requirement which the legislature did not see fit to include.” Martin v. Department of Transportation, Bureau of Driv er Licensing , 905 A.2d 438, 443 (Pa. 2006).

Given the absence of language in section 9111(1) of the P3 Law prohibiting

disclosure of the unsuccessful bidders ’ proposals, I cannot agree with the Majority.

As t he Majority posits : “the issue in this case i s whether Section 9111 of the [P3 Law] exempts unsuccessful proposals from disclosure because it only specifically provides for the disclosure of the successful proposal[.]” Maj. slip op.

at 2

- 3 (emphasis added)

. A statute which explicitly says that one record is subject to public disclosure ( i.e., the proposal of the successful bidder), but is silent regarding another record ( i.e., the proposal s of the unsuccessful bidders ) should not be interpreted to say that the second and unmentioned record is not su bject to

disclosure. Stated differently , the Majority relies solely upon statutory silence
, i.e., the proposal of the successful bidder is explicitly disclosable; ergo, by implication, the proposals of the unsuccessful bidders are not disclosable

.

S ection 9111(1) of the P3 Law says nothing about the public nature of the proposals of the unsuccessful bidders. When a statu t e does not speak of a particular record or document
, then it does not “ expressly provide that the record sought is confidential, p rivate, and/or n ot subject to public disclosure. ” Ali , 125

A.3d at 100 . If the General Assembly wanted to shield from disclosure the proposals of the unsuccessful bidders, it “ could have done so, and it may even have
intended to do so, but it did not do so.” Commonwealth v. Shafer , 202 A.2d 308, 312 (Pa. 1964) . It is an established precept that “[a] court has no power to insert words into statutory provisions where the legislature has failed to supply them.” Amendola v. Civil Service Commission of Craf ton Borough , 589 A.2d 775, 777PAM

- 6

(Pa. Cmwlth. 1991). Because there is no language in the P3 Law exempting from

disclosure the proposals of the unsuccessful bidders after a contract has been

awarded
, I would conclude that the presumption of public access conferred by

s ection 305(a)(3) of the RTKL stands intact and these records are disclosable.

The Majority states that disclosure would require the Court to “incorporate into Section 9111 of the P3 Law, which was enacted after the RTKL,

Sec tion 708(b)(26) of the RTKL,” and that “the public access to records contained in Section 9111 of the P3 Law are sepa rate and distinct from the RTKL, ” dubbing the RTKL as “open ended” and denoti ng the P3 Law as “closed

- ended.” Maj. slip op. at 9

- 10

. T he RTKL is the pr eeminent statute regarding the public’s request s to access public records. See Levy , 65 A.3d at 381. First and foremost, the RTKL mandates that “[a] record in the possession of a Commonwealth agency . . . shall be presumed to be a public record. ” Section 305(a) of the RTKL, 65 P.S. §67.305(a)

. By its very terms, section 305(a)(3) of the RTKL acknowledges that

there are other statutes that dictate the confidential or non

- public nature of a document and incorp orates, through reference, those statut es into its scheme, providing a basis for an exemption from disclosure and nullifying the presumption that a record is a public record

. See 65 P.S. §67.305(a)(3). However, as explained
above, section 9111(1) of the P3 Law provides for no such exemption i n this case.

Moreover, s ection 708(b)(26) of the RTKL
, 65 P.S. § 67.708(b)(26 )
, and section 9111 of the P3 Law are entirely consonant . T he former says that , in general and subject to other exemptions, proposals are exempt from disclosure

until the contr act is awarded, while the latter provides for disclosure only after a

contract has been awarded and expounds upon some addit ional exemptions

. See 65 P.S. §67.708(b)(26) (exempting “[a] proposal pertaining to agency procurementPAM

- 7

or disposal of supplies, ser vices or construction prior to the award of the contract or prior to the opening and rejection of all bids ”) (emphasis added) ; 74 Pa.C.S.
§9111 (1) (stating that the “final proposal” of the “development entity selected ... shall be made public.”); 74 Pa.C.S. §9111 (4 ) (providing that certain information,

such as tr ade secrets and the like, “shall not be public.”). To the limited extent that

section 9111 (4) of the P3 Law contains e xemptions that are not duplicit ous of those in the RTKL, these exemptions , in turn, are incorporated into the RTKL via section 305(a)(3) of the RTKL and can serve as a basis for non

- disclosure

.

T here is no conflict between the RTKL and the P3 Law
, and the two can be construed and applied in unison. See Section 1932(b) of the Statutory Construction Act of 1972, 1 Pa.C.S. §1932(b) (“ Statutes in pari materia shall be construed together, if possible, as one statute .”). T he Majority essentially allows

section 9111 of the P3 Law to ab rogate or supersede the RTKL and act as i ts own
statutory scheme when it comes to the disclosure of public records. Absent an overt expression of unmistakable language and intent, I do not believe that the General Assembly , in enacting the P3 Law, intended to displace the RTKL

. In
addition, the bidding processes of the Procurement Code 6 and the P3 Law as well

as the RTKL are clear.

For these reasons, I respectfully dissent. Unlike the Majority, I would

affirm the final determination of the Office of Open Records specifically upholding

its conclusion that the proposals of the unsuccessful bidders are disclosable

.

________________________________ PATRICIA A. McCULLOUGH, Judge

6 62 Pa. C

. S

. §§ 101

- 2 311

.