IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsylvania Liquor Control Board, :

Petitioner :

:

v. :

:

The Honorable Frank Burns, : No. 1159 C.D. 2019

Respondent : Submitted: May 12, 2020

BEFORE: HONORABLE P. KEVIN BROBSON, Judge 

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE FIZZANO CANNON FILED: June 16, 2020

The Pennsylvania Liquor Control Board (Board) petitions for review of 

the July 24, 2019 final determination of the Pennsylvania Office of Open Records 

(OOR) concluding that the records requested by the Honorable Frank Burns

(Requester), Representative of the 72nd Legislative District, are not exempt from 

disclosure under the Right-to-Know Law (RTKL).

1

 Upon review, we affirm. 

RTKL Request and Board Denial

On May 20, 2019, Requester submitted a RTKL request (Request) to 

the Board, seeking “[r]ecords that reflect the total number of restaurant liquor 

 

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

 
2

licenses eligible for auction in each county as of May 10, 2019.” Request at 1, 

Reproduced Record (R.R.) at 3.2 The Board denied the Request, contending that the 

requested records contained confidential proprietary information exempt from 

disclosure under RTKL Section 708(b)(11), 65 P.S. § 67.708(b)(11), and that 

publicly disclosing the total number of licenses in each county that would be 

available for sale via auction in the future would create an unintended chilling effect 

on the market. Board’s Denial at 2, R.R. at 7. The Board also asserted that the 

requested records contain information that pertains to its internal deliberations and 

strategies to implement and carry out the auction initiative and are, therefore, exempt 

from disclosure pursuant to RTKL Section 708(b)(10)(i)(A), 65 P.S. § 

67.708(b)(10)(i)(A). Board’s Denial at 1-2, R.R. at 6-7. Further, the Board 

maintained that although Section 470.3 of the Liquor Code,

3 as enacted by Act 39 of 

2016, initially required the Board to post online a list of all licenses available for 

auction by March 15 of each year, that requirement was subsequently removed by 

Act 85 of 2016,4thus demonstrating legislative intent to render such information 

nonpublic. Board’s Denial at 2, R.R. at 7.

Appeal to OOR

On June 24, 2019, Requester appealed the Board’s denial to the OOR, 

contending that the requested records constitute public records subject to disclosure 

 

2 Our citations to the Reproduced Record reference the page numbers of the PDF document, 

as the record is not properly paginated in accordance with Pennsylvania Rule of Appellate 

Procedure 2173.

3 Act of April 12, 1951, P.L. 90, as amended, added by the Act of June 8, 2016, P.L. 273,

43 P.S. § 4-470.3.

4 Act of July 13, 2016, P.L. 664, No. 85, § 24(4).
3

under the RTKL. OOR Appeal at 1, R.R. at 10. Requester asserted that the records 

at issue did not contain confidential proprietary information because the requested 

information is not commercial or financial, but simply a count of licenses. OOR 

Appeal at 2, R.R. at 11. Requester contended that the records “were not received by 

an agency, but rather have always existed within the agency.” Id. Requester 

maintained that disclosure of the requested information would not harm the Board’s 

competitive position as it “is the sole controller of the licenses and auctions.” Id. 

Requester also claimed that the underlying liquor license data is already public 

information in Pennsylvania, as licenses are suspended in public board meetings;

administrative law judge adjudications involving license violations, revocations and 

suspensions are posted publicly online in a searchable database; and a list of expired 

liquor licenses is available online through the Board’s publicly available licensing 

database. Id. 

Further, Requester asserted that the requested records did not contain 

information pertaining to the internal, predecisional deliberations of an agency, 

because a list or chart of the number of licenses available for auction in each county 

is merely a set of facts that does not reveal internal discussions or deliberations 

regarding a pending decision. See OOR Appeal at 2, R.R. at 11. Id. Countering the 

Board’s reliance upon the legislative history of the Liquor Code, Requester further 

contended that a review of bill analyses and floor debates failed to reveal a specific 

legislative motive in amending Section 470.3. OOR Appeal at 2-3, R.R. at 11-12. 

Position Statements and Affidavits

On July 5, 2019, the Board submitted a position statement and several 

affidavits to the OOR. Board’s Position Statement at 1, 14, R.R. at 34, 48. The 
4

Board contended that the total number of restaurant liquor licenses that remain 

available for auction in each county in Pennsylvania constitutes a trade secret5 and 

confidential proprietary information protected from disclosure under RTKL Section 

708(b)(11). Board’s Position Statement at 5, R.R. at 39. Claiming that disclosure 

would result in an “unwanted chilling effect” in “at least some counties,” the Board

stated that releasing the requested information “would be detrimental to [its] efforts 

in that it would give potential bidders a forward-looking view into the markets of 

each county that [is] likely to influence when they bid, how much they bid, or 

whether they even bid at all in any given auction.” Board’s Position Statement at 5-

6, R.R. at 39-40. The Board further reiterated its previous contention that the 

requested information reflected its internal, predecisional deliberations and was, 

therefore, exempt pursuant to RTKL Section 708(b)(10)(i)(A), and also that factual 

information may still qualify under this exemption where disclosure would be 

tantamount to publication of an agency’s evaluation and analysis. Board’s Position

Statement at 9-10, R.R. at 43-44. 

The Board maintained that the repeal of certain disclosure requirements 

from Section 470.3 of the Liquor Code evidences legislative intent to hold as 

confidential the number of licenses available for auction by the Board in each 

county. Board’s Position Statement at 10, R.R. at 44. Further, the Board raised the 

additional contentions that the requested records are exempt because their disclosure 

would result in a loss of funds to the Commonwealth and cause personal harm to 

 

5 Although the Board contended for the first time in its Position Statement that the 

requested information constitutes trade secrets, this assertion is not waived. See Levy v. Senate of 

Pa., 65 A.3d 361, 380 (Pa. 2013) (holding that an agency does not waive the ability to assert a 

reason for denying a RTKL request on appeal by omitting the reason from the initial response). 
5

existing licensees.

6

 Board’s Position Statement at 12, R.R. at 46 (citing RTKL 

Section 708(b)(1)(i), (ii), 65 P.S. § 67.708(b)(1)(i), (ii)).

The Board submitted the affidavits of Jason Worley, Esq., its Deputy 

Chief Counsel, and Michael Vigoda, its Director of Legislative Affairs. OOR Final 

Determination at 2, R.R. at 275. Worley attested that he also serves as a Records 

Legal Liaison to the Board’s Agency Open Records Officer, a position which 

involves assisting with responses to RTKL requests. Worley Affidavit at 1, ¶¶ 3-4, 

R.R. at 72. Worley stated that “[i]n addition to its regulatory responsibilities, the 

[Board] is tasked with operating like a business to generate revenue for the benefit 

of the Commonwealth and its citizens,” and that Section 470.3 of the Liquor Code 

was enacted in order to enable the Board “to capitalize on the substantial value that 

restaurant liquor licenses have in Pennsylvania as a result of the county quota system 

established by [S]ection 461 of the Liquor Code, 47 P.S. § 4-461.” Worley Affidavit 

at 2-3, ¶¶ 8, 11, R.R. at 73-74. Worley further attested as follows:

12. Prior to Act 39 of 2016, the county quotas were either 

already met or exceeded in most counties, if not every 

county, in Pennsylvania.

13. This meant that someone seeking to obtain a restaurant 

liquor license had to find an available license for sale on 

the open market, purchase the license for fair market 

value, and then seek [Board] approval to transfer the 

license.

14. Because of required disclosures made by applicants to 

the [Board] during the transfer application process, the 

[Board] developed a general awareness that restaurant 

liquor licenses were being sold for substantial sums of 

 

6 Although the Board did not assert these exemptions in its initial denial, these contentions 

are not waived. See supra note 4. 
6

money on the open market in many counties.

15. With this knowledge, the [Board] proposed to the 

Legislature the idea of auctioning expired restaurant liquor 

licenses as a way of generating additional revenue for the 

Commonwealth without having to issue more licenses in 

contravention of the established quota system.

Worley Affidavit at 3, ¶¶ 12-15, R.R. at 74. 

Worley also indicated that the requirements to post all licenses 

available for auction by March 1 and to auction licenses by June 1 were omitted from 

Section 470.3 of the Liquor Code “when the [Board] determined that the total 

number of expired licenses available to auction statewide totaled approximately 

1,200 licenses,” such that “it became evident that adherence to these requirements 

would result in the markets becoming flooded and the value of each license 

significantly decreasing.” Worley Affidavit at 4, ¶ 19, R.R. at 75. Thus, Worley 

noted that these amendments to Section 470.3 of the Liquor Code afforded the Board

“more discretion in terms of when to auction the available licenses and what 

information to make available moving forward.” Worley Affidavit at 4, ¶ 20, R.R.

at 75. Worley acknowledged that “the [Board] has at times publicly disclosed the 

overall statewide number of licenses that it still has available to auction.” Worley 

Affidavit at 5, ¶ 25, R.R. at 76. However, Worley maintained that, “with the possible 

limited exception of sharing information with Senate and/or House Appropriations 

leadership for purposes of making budgetary/fiscal projections around the time that 

[S]ection 470.3 was enacted and the first restaurant liquor license auction was 

conducted, the [Board] has not otherwise disclosed the breakdown of the total 

number of licenses available in each county.” Worley Affidavit at 5, ¶ 26, R.R. at 

76. 
7

Worley attested that “if [the requested] information were to be 

[p]ublicly disclosed, it would[] improperly influence the current market for 

restaurant liquor licenses in each county, undermine the legislative intent behind 

[S]ection 470.3, and jeopardize what has otherwise been a successful strategy used 

by the [Board] to implement [S]ection 470.3 in the manner that is most beneficial to 

the Commonwealth and its citizens, as well as to existing restaurant liquor licenses.” 

Worley Affidavit at 5-6, ¶ 28, R.R. at 76-77. Worley stated that market demand for 

liquor licenses is unique to each county, such that “the [Board] has been very careful 

in terms of when and how many licenses it chooses to auction in each county or area 

of the state at any one time.” Worley Affidavit at 6, ¶¶ 29-30, R.R. at 77. Worley 

reasoned that “[d]isclosing the specific number of licenses that still remain available 

for auction in each county would be detrimental to the [Board’s] efforts in that it 

would give potential bidders a forward-looking view into the markets of each county 

that are likely to influence when they bid, how much they bid, or whether they even 

bid at all in any given auction,” thereby resulting in “an unwanted chilling effect” 

and either fewer bids or lower bid amounts in certain counties. Worley Affidavit at 

6, ¶¶ 31-32, R.R. at 77. Worley also asserted that disclosing the requested 

information would “no doubt impact the value of the restaurant liquor licenses that 

are currently held by individuals or businesses in Pennsylvania” and that denying 

the request would serve the interests of not only the Commonwealth, but also 

existing restaurant liquor licensees.” Worley Affidavit at 7, ¶¶ 33-34, R.R. at 78. 

Vigoda attested that at various times, legislators have requested the 

number of licenses available for auction in each county, and that the Board 

“consistently declined to fulfill these requests, with the possible limited exception 

of sharing information with Senate and/or House Appropriations leadership for 
8

purposes of making budgetary/fiscal projections around the time that [S]ection 470.3 

was enacted and the first restaurant liquor license auction was conducted.” Vigoda 

Affidavit at 1-2, ¶¶ 4-5, R.R. at 151-52. Vigoda also attested that divulging the 

requested information “would improperly influence the current market for restaurant 

liquor licenses in each county and would significantly undermine the [Board’s] 

strategy and efforts to implement [S]ection 470.3 of the Liquor Code in the manner 

that is most beneficial to the Commonwealth and its citizens, as well as to existing 

restaurant liquor licensees.” Vigoda Affidavit at 2, ¶ 7, R.R. at 152. Vigoda 

acknowledged that “the [Board] has at various times disclosed the total number of 

restaurant liquor licenses that remain available for auction statewide without 

revealing the breakdown of how many licenses remain available in each county, as 

such practice is not believed to be detrimental to the Board’s strategy and efforts as 

described above.” Vigoda Affidavit at 2-3, ¶ 8, R.R. at 152-53.

Requester submitted a position statement on July 9, 2019, contending 

that the requested information is necessary to assist legislators in voting on pending 

legislation. Requester’s Position Statement at 2, R.R. at 169. Requester also 

asserted that the Board previously revealed the number of licenses available for

auction before certain committees of the Pennsylvania House of Representatives and 

that this information was also available on certain news websites and legal blogs, 

which Requester attached to his position statement as exhibits. Requester’s Position 

Statement at 2, R.R. at 170. Requester submitted an affidavit provided by Kari 

Orchard, Regional Caucus Director of the House Democratic Caucus Northwest 

Delegation, who attested that she attended a meeting at which the Board’s Director 

of Regulatory Affairs, Tisha Albert, disclosed the number of licenses available for 

auction in a variety of counties that would be considered “oversaturated.” Orchard 
9

Affidavit at 1, ¶¶ 7-10, R.R. at 174.

Also on July 9, 2019, the OOR requested additional information from 

the Board and, in response, the Board submitted the relevant legislative history of 

Section 470.3 of the Liquor Code. OOR Final Determination at 2-3, R.R. at 275-76. 

On July 12, 2019, the Board submitted an affidavit provided by its Press Secretary, 

Shawn Kelly. Kelly Affidavit at 1, ¶ 1, R.R. at 248; see also OOR Final 

Determination at 3, R.R. at 354. Kelly attested that the Board has at various times 

received requests from reporters and the news media for lists showing the total 

number of restaurant liquor licenses available for auction in each county, but that the 

Board’s Press Office has consistently declined to fulfill these requests. Kelly 

Affidavit at 1, ¶¶ 4-5, R.R. at 248. Kelly further attested that “disclosure of [the 

requested information] would improperly influence the current market for restaurant 

liquor licenses in each county and would significantly undermine the [Board’s]

strategy and efforts to implement [S]ection 470.3 of the Liquor Code in the manner 

that is most beneficial to the Commonwealth and its citizens, as well as to existing 

restaurant liquor licensees.” Kelly Affidavit at 2, ¶ 7, R.R. at 249. Kelly 

acknowledged that the Board’s “Press Office has also occasionally made limited 

comments to reporters or the news media about the number of licenses available in 

particular counties after it was determined that such comments would not have a 

negative impact on the [Board’s] interests in conducting future auctions.” Kelly 

Affidavit at 2, ¶ 9, R.R. at 249.

OOR Final Determination

On July 24, 2019, the OOR granted Requester’s appeal and ordered 

disclosure of the requested records. OOR Final Determination at 14, R.R. at 287. 
10

The OOR rejected the Board’s argument that the legislative history of Section 470.3 

of the Liquor Code renders the disputed information nonpublic, further noting that 

the Board failed to point to any confidentiality provisions in the statute. OOR Final 

Determination at 6, R.R. at 257. The OOR reasoned that the decision of the General 

Assembly to amend Section 470.3 of the Liquor Code to “[r]eliev[e] the Board of 

the duty to create and post an annual ‘listing’ of licenses is not akin to saying that 

the underlying information is confidential.” OOR Final Determination at 6 n.2, R.R. 

at 257. 

The OOR concluded that the Board failed to establish that the total 

number of licenses available for auction by the Board for each county was exempt 

from disclosure as a trade secret pursuant to RTKL Section 708(b)(11), reasoning

that the Board failed to demonstrate how other persons could derive economic value 

from possessing this information. OOR Final Determination at 10, R.R. at 261. The 

OOR pointed out that, regardless of whether the disputed information is accessible,

the Board still determines “when and how many licenses it chooses to auction in 

each county.” Id. (quoting Worley Affidavit at 6, ¶¶ 29-30, R.R. at 77). 

The OOR also determined that the Board failed to establish that the 

requested records were exempt from disclosure because they contained confidential

proprietary information pursuant to RTKL Section 708(b)(11), reasoning that the 

Commonwealth does not constitute a “person” for purposes of the definition of the 

term set forth in the RTKL. OOR Final Determination at 11, R.R. at 262 (citing 

RTKL Section 102, 65 P.S. § 67.102 (providing that information may constitute 

“confidential proprietary information” when its disclosure would result in 

“substantial harm to the competitive position of the person that submitted the 

information”)). Further, the OOR concluded that the requested records were not 
11

exempt under RTKL Section 708(b)(10)(i)(A), relating to internal, predecisional 

deliberations of the Board, reasoning that the disputed information “is purely 

factual” and “devoid of any deliberative character.” OOR Final Determination at 

13, R.R. at 264. 

Lastly, the OOR determined that the Board failed to establish that the 

requested records were exempt from disclosure because they would result in the loss 

of Federal or State funds pursuant to RTKL Section 708(b)(1)(i). OOR Final 

Determination at 13, R.R. at 264. The OOR was not persuaded by the Board’s 

argument that disclosure of the requested information could undermine its ability to 

generate revenue, reasoning that the Board should have “affirmatively state[d] that 

release of the information would result in actual loss of funding.” Id. (citing Cent. 

Dauphin Sch. Dist. v. Hawkins, 199 A.3d 1005, 1016 (Pa. Cmwlth. 2018)). The 

Board then filed a petition for review with this Court.

Discussion

On appeal, the Board argues that the OOR erred in failing to properly 

consider the legislative history of Section 470.3 of the Liquor Code and in failing to 

conclude that the information sought by Requester was subject to any of the 

exemptions noted above. We disagree.

We begin with an overview of the RTKL. “The objective of . . . [this] 

[l]aw . . . 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). Further, the RTKL is remedial in nature and 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 
12

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

2015) (citation omitted). “[C]ourts should liberally construe the RTKL to effectuate 

its purpose[.]” Barnett v. Pa. Dep’t of Pub. Welfare, 71 A.3d 399, 403 (Pa. Cmwlth. 

2013). “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.” Bagwell, 114 A.3d at 1122. 

Legislative History

In 2016, the General Assembly amended the Liquor Code through the 

addition of Section 470.3, 47 P.S. § 4-470.3, which originally provided, in relevant 

part:

(a) A restaurant liquor license shall become available for 

auction by the [B]oard[7] under the following conditions:

(1) the license has not been renewed under section 470;

(2) the license has been revoked under section 471; or

(3) the licensee has failed to meet the requirements under 

474.1.[8]

(a.1)(1) Subsection (a) shall apply to all restaurant liquor 

licenses that became available after December 31, 1999.

(2) Any licenses not sold shall be available for sale at 

future auctions, provided, however, that no more than fifty 

 

7 More specifically, the Board is auctioning the right to apply for a license. See Section 

470.3 of the Liquor Code, 47 P.S. § 4-470.3 (providing that “[a]fter the auction, the [B]oard shall 

provisionally award to the person making the highest bid for the license, the right to file an 

application for the license”).

8 Act of April 12, 1951, P.L. 90, art. IV, § 474.1, as amended, added by the Act of 

December 9, 2002, P.L. 1653, No. 212, § 21.
13

licenses shall be auctioned in any county per year.

(b) A license becomes available for auction by the [B]oard 

the day after the deadline has passed for appealing a 

decision revoking or not renewing the license or the day 

after the two-year window to file a renewal application 

nunc pro tunc under section 470 has passed.

(c) The auction shall occur no later than June 1 of the 

calendar year after the license becomes available for 

auction and on a date to be determined by the [B]oard.

(d) By March 1 of each year, the [B]oard shall post on its 

publicly accessible Internet website a listing of all the 

licenses that are to be available for auction in June of that 

year. The list shall also be available upon request.

(e) The [B]oard shall accept applications from persons 

interested in bidding at the auction beginning March 1. 

The application shall be in writing and shall contain 

information as the [B]oard shall from time to time 

prescribe. The [B]oard shall accept applications until 

May 15 and may, in its discretion, accept applications 

after that date.

Act of June 8, 2016, P.L. 273, No. 39, § 17.3 (effective Aug. 8, 2016) (emphasis 

added). The General Assembly amended this statute prior to its effective date by 

repealing subsections (c) through (e). See Act of July 13, 2016, P.L. 664, No. 85, § 

24(4) (imd. effective) (Act 85) (stating, “Section 470.3(c), (d) and (e) of the act of 

April 12, 1951 (P.L. 90, No. 21), known as the Liquor Code, are repealed”). This 

amendment became effective immediately upon its passage on July 13, 2016. See 

id. Further, Section 24(3) of Act 85 provides, in pertinent part, that “[t]he General 

Assembly declares that the repeal [of subsections (c) through (e)] is necessary to 
14

effectuate the addition of [S]ection 1799.3-E of the [Fiscal Code].”9 Act of July 13,

2016, P.L. 664, No. 85, § 24(3), R.R. at 198. Section 1799.3-E of The Fiscal Code, 

in turn, provides that “[i]n order to encourage the auctioning of licenses under 

[S]ection 470.3 of . . . the Liquor Code, the [Board] shall set the dates, times and 

regulations for the auctioning of licenses.” 72 P.S. § 1799.3-E. 

Before this Court,10 the Board argues that the OOR erred in failing to 

recognize that the legislative history of Section 470.3 of the Liquor Code reveals

that the requested information is exempt from disclosure. See Board’s Brief at 19, 

26. The Board contends that the omission by the General Assembly of the 

requirement to publicly list licenses available for auction on its website and to 

otherwise make such licenses publicly available upon request evidences legislative 

intent to deem the information nonpublic. See Board’s Brief at 26. The Board 

asserts that “[i]f the legislature had only intended to eliminate an obligation to create 

a list or eliminate the deadline for posting, it could have easily done so while still 

retaining language requiring information about the Board’s inventory of expired 

licenses to be made publicly available upon request.” Id. at 26-27. The Board 

therefore maintains that the above-outlined legislative amendments afford it the 

business discretion to determine not only when to auction expired licenses, but 

which information to make publicly available. Id. at 23, 27. 

The Board reasons that “[m]aintaining control over what information is 

made publicly available regarding the remaining inventory of expired licenses is 

critical to being able to effectively exercise such business discretion and generate 

 

9 Act of April 9, 1929, P.L. 343, as amended, added by the Act of July 13, 2016, P.L. 664, 

72 P.S. § 1799.3-E.

10 “This Court’s standard of review of a final determination of the OOR is de novo and our 

scope of review is plenary.” Hunsicker v. Pa. State Police, 93 A.3d 911, 913 n.7 (Pa. Cmwlth. 

2014). 
15

revenue for the Commonwealth.” Id. at 27 n.17. The Board relies on RTKL Section 

306, 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.” Id. at 25 (citing 65 P.S. § 67.306). The Board 

also cites RTKL Section 3101.1, which provides that “[i]f the provisions of this act 

regarding access to records conflict with any other Federal or State law, the 

provisions of this act shall not apply.” Id. (citing 65 P.S. § 67.3101.1).

Requester counters that reviewing the legislative history of Section 

470.3 of the Liquor Code is unnecessary, because the intent of the legislature in 

enacting a statute may be gleaned from the words therein where it is clear and free 

from ambiguity. Requester’s Brief at 13 (citing Commonwealth v. Shiffler, 879 A.2d 

185, 189 (Pa. 2005)). Requester further contends that the requested records are not 

exempt from disclosure, because the Liquor Code does not include a confidentiality 

provision. Id. at 15. Regardless, Requester asserts that, assuming arguendo Section 

470.3 of the Liquor Code is ambiguous, the relevant legislative history does not 

support the Board’s position. Id. at 15-16. Requester maintains that omission of the 

obligation to post information regarding licenses available for auction does not in 

and of itself render such information nonpublic, as the plain language of the statute 

does not prohibit disclosure of the requested information. Id. at 16-17. 

In essence, the Board argues that Section 470.3 of the Liquor Code

renders the requested records nonpublic when read in conjunction with its legislative 

history. Id. at 25. Our Supreme Court has advised as follows regarding the role of 

legislative history in statutory construction:

Our rules of statutory construction make clear that in 

interpreting statutes we must at all times seek to ascertain 

and effectuate the legislative intent underlying the 
16

enactment of the particular statute(s). 1 Pa.C.S. § 1921(a). 

Where the words of a statute are clear and free from 

ambiguity the legislative intent is to be gleaned from those 

very words. Where, however, the statute is unclear or 

susceptible of differing interpretations, the courts must 

look to the necessity of the act, the object to be attained, 

the circumstances under which it was enacted and any 

legislative or administrative interpretations thereof. 

Coretsky v. Bd. of Comm’rs of Butler Twp., . . . 555 A.2d 

72 ([Pa.] 1989). In ascertaining the legislative intent of a 

particular statute it is presumed, inter alia, that . . . the 

legislature intends to favor the public interest as opposed 

to any private interest. See generally[] 1 Pa.C.S. § 1922.

Pa. Fin. Responsibility Assigned Claims Plan v. English, 664 A.2d 84, 87 (Pa. 1995). 

Thus, “[o]nly where the operative statutory language is not explicit in conveying the 

intent of the General Assembly should courts look beyond the General Assembly’s 

words to ascertain its intent.” Pennsylvanians for Union Reform v. Pa. Dep’t of 

State, 138 A.3d 727, 731-32 (Pa. Cmwlth. 2016). Further, “we are mindful that 

when the words of a statute are clear and free from all ambiguity, the letter of it is 

not to be disregarded under the pretext of pursuing its spirit.” Shiffler, 879 A.2d at

189 (citing Section 1921(b) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 

1921(b)) (brackets and quotation marks omitted). “As a general rule, the best 

indication of legislative intent is the plain language of a statute.” Commonwealth v. 

Bradley, 834 A.2d 1127, 1132 (Pa. 2003).

Here, Section 470.3 of the Liquor Code manifests no ambiguity 

regarding whether the number of restaurant liquor licenses available for auction by 

the Board in each county constitutes public or nonpublic information. In fact, the 

Liquor Code does not address that subject at all. Thus, the Board’s logic would 

deem ambiguous any statute which fails to address a particular subject or issue and 
17

would result in the needless disregard of plain meaning in favor of alternate modes 

of construction. See English, 664 A.2d at 87. Further, we note that “[i]n order to 

constitute an exemption under Section 305(a)(3) of the RTKL,11 the . . . statute must 

expressly provide that the record sought is confidential, private, and/or not subject 

to public disclosure.” Ali v. Phila. City Planning Comm’n, 125 A.3d 92, 99-100 (Pa. 

Cmwlth. 2015) (emphasis added) (holding that the “Copyright Act[12]is not a federal 

law that exempts materials from disclosure under the RTKL” as “[i]t neither 

expressly makes copyrighted material private or confidential, nor does it expressly 

preclude a government agency, lawfully in possession of the copyrighted material, 

from disclosing that material to the public”).

13

 Thus, the Board fails to establish that 

Section 470.3 of the Liquor Code overcomes the presumption that the disputed 

records are public records. See RTKL Section 305(a), 65 P.S. § 67.305(a). 

 

11 RTKL Section 305(a) provides as follows:

General rule.--A record in the possession of a Commonwealth 

agency or local agency shall be presumed to be a public record. 

The presumption shall not apply if:

(1) the record is exempt under section 708;

(2) the record is protected by a privilege; or

(3) the record is exempt from disclosure under any other Federal or 

State law or regulation or judicial order or decree.

65 P.S. § 67.305(a).

12 17 U.S.C. §§ 101-1401.

13 We note that the General Assembly has expressly rendered other information accessible 

to the public under the Liquor Code. See Section 473(b) of the Liquor Code 47 P.S. § 4-473(b) 

(emphasis added) (stating that “[t]he names and addresses [of any person having a pecuniary 

interest in the conduct of business on licensed premises] shall be recorded by the board and made 

available to the public as a public record”).
18

Further, the Board’s interpretation runs counter to the presumption that 

the legislature intends to favor the public interest, in this case by promoting access 

to government information that will empower citizens to hold public officials 

accountable for their actions. See Section 1922 of the Statutory Construction Act of 

1972, 1 Pa.C.S. § 1922; SWB Yankees LLC, 45 A.3d at 1042; Bagwell, 114 A.3d at 

1122. Moreover, we are not persuaded by the Board’s argument that the repeal of 

subsections (c) through (e) demonstrates legislative intent to shield the disputed 

information from public access. While we acknowledge that “[a] change in the 

language of a statute ordinarily indicates a change in legislative intent,” here, the 

legislative amendment evidences the General Assembly’s intent to relieve the Board

of the obligation to post the list of licenses available for auction and to hold the 

auction on a statutorily mandated date; it does not evidence any intent to shield the 

list of available licenses from public access. Cf. Clearwater Constr., Inc. v. 

Northampton Cty. Gen. Purpose Auth., 166 A.3d 513, 520-21 (Pa. Cmwlth. 2017) 

(holding that “the General Assembly’s conscious decision to amend [a] bill to 

exclude offerors from bringing a claim against a non-Commonwealth entity, while 

allowing them to pursue protests against the Commonwealth, [was] strong evidence 

of its intent to distinguish the two”).

RTKL Exemptions

Having established that the Liquor Code does not impede disclosure of 

the requested records, the relevant question becomes whether access may be denied 

pursuant to any exemption under the RTKL. The Board argues on appeal that the 

requested records are exempt from disclosure because they contained trade secrets 

and confidential proprietary information under RTKL Section 708(b)(11), because 
19

they reflected internal, predecisional deliberations pursuant to RTKL Section 

708(b)(10)(1)(A), and because they involved a loss of funds under RTKL Section 

708(b)(1)(i). We will address each argument in turn.

Trade Secrets and Confidential Proprietary Information

RTKL Section 708(b)(11) 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 not interchangeable and are analyzed separately 

for purposes of the exemption. See Office of the Governor v. Bari, 20 A.3d 634, 

647-48 (Pa. Cmwlth. 2011). 

Trade Secrets

RTKL Section 102 defines the term “trade secret,” in relevant part, as 

follows:

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.

65 P.S. § 67.102. In addition, six factors are relevant in determining trade secret 

status under the RTKL: 
20

(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.

 

Mission Pa., LLC v. McKelvey, 212 A.3d 119, 136 (Pa. Cmwlth. 2019), appeals 

granted in part sub nom. McKelvey v. Pa. Dep’t of Health (Pa., Nos. 393, 394, & 

396 MAL 2019, filed Jan. 28, 2020), appeal denied, (Pa., No. 395 MAL 2019, filed 

Jan. 28, 2020) (quoting Smith v. Dep’t Envtl. Prot., 161 A.3d 1049 (Pa. Cmwlth. 

2017)). A trade secret “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, 185 (Pa. Cmwlth. 2006). “The most 

important indicia for determining whether information constitutes a trade secret are 

‘substantial secrecy and competitive value to the owner.’” Id. (quoting W. Chester 

Univ. of Pa. v. Schackner (Bravo Group, Inc.), 124 A.3d 382 (Pa. Cmwlth. 2015)). 

Further, this Court has noted previously, albeit under the former Right-to-Know 

Act,14 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[.]” Hoffman v. 

Pa. Game Comm’n, 455 A.2d 731, 733 (Pa. Cmwlth. 1983).

15

 

14 Act of June 21, 1957, P.L. 390, as amended, formerly 65 P.S. §§ 66.1–66.4, repealed and 

replaced by the Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101–67.3104

15 This Court has previously applied caselaw decided under the former Right-to-Know Act 

in construing exceptions that were preserved in the current RTKL. See Delaware County v. 

Schaefer ex rel. Phila. Inquirer, 45 A.3d 1149, 1156 n.10 (Pa. Cmwlth. 2012) (reasoning that 

“[b]ecause the ‘personal security exception’ historically encompassed, among other things, a right 
21

The Board contends that the requested records contain “compilations” 

of information and, as such, fall squarely within the definition of “trade secret” set 

forth in RTKL Section 102. Board’s Brief at 36-37 n.24 (citing 65 P.S. § 67.102).

The Board further asserts that it has a business obligation to maximize revenue for 

the Commonwealth through the auctioning of restaurant liquor licenses. Id. at 36. 

The Board maintains that it is competing against private sellers in the market for 

restaurant liquor licenses, and that private sellers could use the requested information 

to their own advantage in determining whether and when to sell licenses. Id. at 33-

35. Thus, the Board contends that the affidavits it provided support that disclosing 

the disputed information would result in a “chilling effect” in at least some counties 

by influencing bid amounts and the timing of public participation in license auctions, 

and would undermine “strategic advantage of being able to decide when and how 

many licenses to auction in a particular county without having to disclose that it still 

has additional licenses in that county to offer for sale at a later time.” Id. at 34.

The Board acknowledges that it has shared the number of licenses 

available for auction in certain counties with Senate and House Appropriations 

leadership for purposes of making budgetary and fiscal projections around the time 

that Section 470.3 of the Liquor Code was enacted and when subsequently

discussing potential legislation. Id. at 35-36. Nevertheless, the Board contends that 

this limited disclosure “does not change the fact that [it] has otherwise kept that 

information confidential, and it does not automatically make the full catalog of 

information public.” Id. at 35. Further, the Board asserts that “to the extent that [its] 

Press Office has occasionally made limited comments to reporters or the news media

about the number of expired licenses available in particular counties, this was done 

 

to privacy, the Legislature’s continued use of the ‘personal security’ language strongly indicates 

the Legislature intended to preserve the right to privacy under the current RTKL”).
22

after it was determined that such comments would not have a negative impact on 

[its] interests in conducting future auctions.” Id. at 36 (citing R.R. at 248). 

Requester counters that the disputed records do not contain trade 

secrets, because this exemption “ceases to be of any moment when the function is 

recognized as governmental, rather than that of a private business,” and while the 

Board may operate in a “business-like” manner, it is not a business. Requester’s 

Brief at 20, 22 (quoting Hoffman, 455 A.2d at 733). Requester reasons that to the 

extent the Board generates profit, it does so for the benefit of taxpayers, such that by 

that reasoning all Commonwealth agencies operate as businesses. Id. at 22. Further, 

Requester asserts that the Board fails to demonstrate that the requested information 

possesses competitive value and maintains that the Board has no competition, as it 

is the chief regulator of liquor sales in the Commonwealth. Id. at 22, 23 (citing Pa. 

Dep’t of Revenue v. Flemming (Pa. Cmwlth., No. 2318 C.D. 2014, filed Aug. 21, 

2015)). We agree with Requester that the disputed information is not exempt from 

disclosure as a trade secret under RTKL Section 708(b)(11). The Board’s 

acknowledgement that its Press Office has occasionally made comments to reporters 

or the news media about the number of expired licenses available in particular 

counties, the very information sought here by Requester, effectively precludes a 

finding that such information constitutes a “trade secret.” Further, with respect to 

commercial enterprises undertaken by government agencies, our Supreme Court has 

opined that such enterprises remain “governmental functions” and that the 

government’s entry into the “private sector” does not suggest a “diminished cause 

for openness.” SWB Yankees LLC, 45 A.3d at 1042 (evaluating whether records in 

the possession of a government contractor directly related to the governmental 

function it had contracted to perform on behalf of the government were subject to 
23

disclosure under RTKL Section 506(d)(1), 65 P.S. § 67.506(d)(1)). The Court 

explained that the Legislature would not be “naïve about the potential for 

inappropriate influences which have become a risk attending such,” thereby 

militating “in favor of public scrutiny.” Id.; see also Parsons, 910 A.2d at 186

(reasoning that “[a]lthough it competes with private lenders and others[,] [the 

Pennsylvania Higher Education Assistance Agency] is subject to the [RTKL], . . .

and it may not conduct its affairs precisely as a private entity does,” while 

nevertheless acknowledging “that some of the requested records may refer to secret 

information of competitive value”). 

Here, the Board’s arguments in favor of the trade secrets exemption in 

fact undermine its own position by demonstrating that the requested information

relates to its performance of a governmental function, thereby obviating the claimed

exemption. The Board contends that Section 470.3 of the Liquor Code, when 

considered alongside its legislative history, reveals the nonpublic nature of the 

requested information. See Board’s Brief at 19. However, this provision of the 

Liquor Code specifically authorizes the Board to conduct auctions for restaurant 

liquor licenses, thereby framing this duty as a governmental function. See SWB 

Yankees LLC, 45 A.3d at 1041. Further, each of the three affidavits offered by the 

Board asserts that holding restaurant liquor license auctions benefits the general 

public, yet another indicia of a governmental function. See Worley Affidavit at 5-6, 

¶ 28, R.R. at 76-77; Vigoda Affidavit at 2, ¶ 7, R.R. at 152; Kelly Affidavit at 2, ¶ 

7, R.R. at 249; see also SWB Yankees LLC, 45 A.3d at 1041. 

The Board also emphasizes that it exercises business discretion in 

conducting restaurant liquor license auctions, maintaining generally that it performs 

a “unique business role.” See Board’s Brief at 23-24. However, as our Supreme 
24

Court has noted, it is this very overlap with traditional private sector activities and 

“the departure[] from the more conventional confines of government” that 

necessitates “a reasonably broad construction of ‘governmental function’” in order 

to further the objectives of the RTKL. SWB Yankees LLC, 45 A.3d at 1042. Thus, 

because conducting these auctions constitutes a governmental function, the Board

cannot establish that the number of restaurant liquor licenses available for auction in 

each county is exempt from disclosure as a “trade secret” pursuant to RTKL Section 

708(b)(11). 

Confidential Proprietary Information

RTKL Section 102 provides the following definition of the term

“confidential proprietary information”: 

Commercial or financial information received by an 

agency:

(1) which is privileged or confidential; and

(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. “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 injury if the information were 

released.” Dep’t of Corr. v. Maulsby, 121 A.3d 585, 590 (Pa. Cmwlth. 2015). In 

addition, “[c]ompetitive harm analysis is limited to harm flowing from the 

affirmative use of proprietary information by competitors,” such that “[c]ompetitive 
25

harm should not be taken to mean simply any injury to competitive position.” Id.

(internal citation and quotation marks omitted).

The Board notes that although the RTKL does not define the term 

“commercial information,” its ordinary and common meaning is “viewed with 

regard to profit.” Board’s Brief at 37 n.25 (citing Merriam-Webster Online 

Dictionary). The Board contends that while the definition of confidential proprietary 

information in the RTKL “seems to suggest that [such information] must belong to 

a third party and be received by an agency, it does not logically follow that the 

legislature would have intended to give these protections to private businesses, but 

not a business operation run by the Commonwealth itself.” Id. at 37 n.26. The Board

also asserts that it has made extensive efforts to maintain the secrecy of the requested 

information. Id. at 38. Further, the Board maintains that it is in direct competition 

with private sellers of restaurant liquor licenses in the Pennsylvania market, and that 

disclosure of the requested information would cause substantial competitive injury 

by undermining “(1) its ability to make strategic business decisions regarding when 

to sell licenses and how many licenses to offer at any given time; and (2) its ability 

generate additional revenue for the benefit of the Commonwealth and its citizens.” 

Id. at 28, 38.

Requester counters that the requested information does not constitute 

confidential proprietary information because the fact that the Commonwealth is not 

a “person” for purposes of RTKL Section 102, 65 P.S. § 67.102, precludes the Board 

from establishing that disclosure of the requested information would cause 

substantial harm to its competitive position. Id. at 25-26.

Black’s Law Dictionary defines the term “commercial,” in relevant 

part, as “[o]f, relating to, or involving the buying and selling of goods; mercantile” 
26

and “[o]f, relating to, or involving the ability of a product or business to make a 

profit[.]” Commercial, Black’s Law Dictionary (11th ed. 2019).

16

 Because 

restaurant liquor licenses are a regulatory tool, rather than a good, and, as established 

above, the Board is exercising a governmental function in conducting the auctions, 

it is not immediately apparent that the number of restaurant liquor licenses available 

for auction in each county constitutes commercial information. However, assuming 

arguendo the disputed information constitutes commercial information, we 

nevertheless agree that the Board fails to establish that the requested records contain 

confidential proprietary information. 

As noted above, RTKL Section 102 defines “confidential proprietary 

information,” in relevant part, as “information received by an agency . . . the 

disclosure of which would cause substantial harm to the competitive position of the 

person that submitted the information.” 65 P.S. § 67.102 (emphasis added). Here, 

the Board does not receive the requested information from an outside party.

17

 

Rather, the Board accumulates such information as a result of its own administrative 

actions and assembles the same into a manageable list. Indeed, the Board is tasked 

with administering and overseeing the statutory processes that would cause a 

 

16

“Words and phrases shall be construed according to rules of grammar and according to 

their common and approved usage; but technical words and phrases and such others as have 

acquired a peculiar and appropriate meaning or are defined in this part, shall be construed 

according to such peculiar and appropriate meaning or definition.” Section 1903(a) of the 

Statutory Construction Act of 1972, 1 Pa.C.S. § 1903(a).

17 A review of relevant caselaw confirms that this exemption contemplates scenarios in 

which the information is submitted to the agency by a third party, such as a government contractor. 

See, e.g., Crouthamel v. Dep’t of Transp., 207 A.3d 432, 441 (Pa. Cmwlth. 2019) (holding that the 

requested records, which contained information provided to the Department of Transportation by 

a third-party contractor and its subcontractor, were exempt from disclosure for containing 

confidential proprietary information pursuant to RTKL Section 708(b)(11)).
27

restaurant liquor license to become available for auction, whether through the lapse, 

revocation, or surrender of the license. See Sections 470, 471, and 474.1 of the 

Liquor Code, 47 P.S. §§ 4-470, 4-471, 4-474.1. Thus, to the extent the Board 

“receives” the disputed information, it does so either internally or from the 

independent office of the administrative law judge.18 See id. The Board then decides 

“when and how many licenses . . . to auction in each county.” OOR Final 

Determination at 10, R.R. at 261 (quoting Worley Affidavit at 6, ¶¶ 29-30, R.R. at 

77). Hence, there can be no possibility of “substantial harm to the competitive 

position of the person that submitted the information.” 65 P.S. § 67.102.

Consequently, the Board cannot establish that requested records contain confidential 

proprietary information and are, thus, exempt from disclosure under RTKL Section 

708(b)(11). 

 

Internal, Predecisional Deliberations

RTKL Section 708(b)(10)(i)(A) exempts the following from public 

access:

A record that reflects . . . [t]he 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, including predecisional 

 

18 The Office of Administrative Law Judge is an authority independent of the Board that 

adjudicates all citations against licensees issued by the Pennsylvania State Police Bureau of Liquor 

Control Enforcement. See Office of Administrative Law Judge, available at 

https://www.lcb.pa.gov/Legal/Office-of-ALJ/Pages/default.aspx (last visited June 15, 2020). See 

also Section 212 (a), (c) of the Liquor Code, 47 P.S. § 2-212(a), (c) (providing for the “creat[ion] 

within the [B]oard [of an] autonomous office to be known as the Office of Administrative Law 

Judge,” consisting of administrative law judges who “shall preside at all citation and other 

enforcement hearings required or permitted under this act”).
28

deliberations relating to a budget recommendation, 

legislative proposal, legislative amendment, contemplated 

or proposed policy or course of action or any research, 

memos or other documents used in the predecisional 

deliberations.

65 P.S. § 67.708(b)(10)(i)(A). “In order to demonstrate that the withheld documents 

are deliberative in character, an agency must submit evidence of specific facts 

showing how the information relates to deliberation of a particular decision.” 

McGowan v. Pa. Dep’t of Envtl. Prot., 103 A.3d 374, 383 (Pa. Cmwlth. 2014)

(internal citation and quotation marks omitted). “Only information that constitutes

confidential deliberations of law or policymaking, reflecting opinions, 

recommendations or advice is protected as ‘deliberative.’” Carey v. Pa. Dep’t of 

Corr., 61 A.3d 367, 378 (Pa. Cmwlth. 2013) (internal quotation marks omitted). 

However, “purely factual material is severable and, in general, should be disclosed 

even when it is located within a document containing exempted predecisional 

deliberations.” McGowan, 103 A.3d at 386; see also Township of Worcester v. 

Office of Open Records, 129 A.3d 44, 61 (Pa. Cmwlth. 2016) (stating that “[f]actual 

information is not deliberative in character”). Nevertheless, “factual material can 

still qualify as deliberative information if its disclosure would so expose the 

deliberative process within an agency that it must be deemed exempted; or, in other 

words, when disclosure of the factual material would be tantamount to the 

publication of the [agency’s] evaluation and analysis.” McGowan, 103 A.3d at 387

(internal citation and quotation marks omitted).

The Board contends that “[t]he per county inventory of expired licenses

is effectively a working list that [it] regularly uses to strategize and determine when 

and how many licenses to auction in a particular county or particular part of the state 

at any given time,” such that this information “is predecisional in nature relative to 
29

decisions that have not yet been made about conducting future license auctions[.]” 

Board’s Brief at 41. Acknowledging that the requested information is factual in 

nature, the Board nevertheless maintains that disclosure thereof would expose its 

strategy and deliberative process. Id. The Board therefore asserts that disclosure of 

the disputed information “would give insight into how the [Board] is selecting 

licenses to auction in each county and how often in comparison to the available 

number of licenses,” such that “prospective bidders and others would be able to 

make predictions about future auctions and use the information against the [Board]

in trying to implement its strategy.” Id. at 40-41. The Board contends that “[m]aking 

such information publicly available would also create the opportunity for third 

parties to lobby [the Board] an effort to exert outside influence on decisions that are 

made regarding the license auctions.” Id. at 42. Requester counters that the disputed 

records do not reflect internal, predecisional deliberations, but rather contain factual 

information. Requester’s Brief at 28. 

Here, the Board’s own argument demonstrates the inapplicability of the 

asserted exemption. The Board asserts that the requested information “is 

predecisional in nature relative to decisions that have not yet been made about 

conducting future license auctions[.]” Board’s Brief at 41 (emphasis added). 

However, successfully invoking the exemption requires evidence of specific facts 

demonstrating how the information relates to deliberation of a particular decision. 

See McGowan, 103 A.3d at 383. Further, the Board admits that the disputed 

information is factual in nature. See Board’s Brief at 41. Despite asserting that 

disclosure of these facts would nevertheless expose its strategy and deliberative 

process regarding the selection of licenses to auction in each county, we are 

unpersuaded such disclosure “would be tantamount to the publication of the 
30

[agency’s] evaluation and analysis.” McGowan, 103 A.3d at 387 (internal citation 

and quotation marks omitted); see also Board’s Brief at 40-41. As noted by the OOR

and conceded by the Board, even with knowledge of the total number of restaurant 

liquor licenses available for auction in each county, the general public is still not 

privy to the number of licenses the Board will select for auction in each county and 

when each auction will take place. See Worley Affidavit at 6, ¶¶ 29-30, R.R. at 77; 

see also OOR Final Determination at 10 n.4, R.R. at 261. 

We fail to discern how revealing raw data regarding the total number 

of licenses the Board could potentially select for auction in each county provides

insight into any policymaking, recommendations, or other deliberative processes of 

the Board. See Carey, 61 A.3d at 378; see also McGowan, 103 A.3d at 386-89 

(affirming in part, vacating in part and remanding to the OOR to conduct in camera

review of two documents that were deliberative in nature to the extent they contained

a summarized version of rough drafts of a final report of the Department of 

Environmental Protection regarding whether or not to re-designate a creek and 

“concern[ed] the Department’s thought process in determining when to release the 

final report for public comment,” yet also may have “contain[ed] qualitative or 

statistical data that [could] be severed from the deliberative portions of those 

documents”). Thus, the Board fails to demonstrate that the requested records are 

exempt from disclosure because they reflected internal, predecisional deliberations 

of an agency pursuant to RTKL Section 708(b)(10)(i)(A).
31

Loss of Funds/Personal Security

RTKL Section 708(b)(1)(i) exempts from public access “[a] record, the 

disclosure of which . . . would result in the loss of Federal or State funds by an 

agency or the Commonwealth[.]” 65 P.S. § 67.708(b)(1)(i). 

The Board argues that the OOR erred in concluding that disclosure of 

the requested records would not result in the loss of funds to the Commonwealth for 

purposes of this exemption. Board’s Brief at 42. The Board acknowledges that it 

does not receive Federal or State funding as part of its license auction initiative. Id.

at 42-43. Nevertheless, the Board contends that Section 470.3 of the Liquor Code 

grants it the authority to generate additional revenue for the Commonwealth and that 

disclosure of the requested information would undermine this specific legislative 

purpose by undermining its ability to generate revenue. Id. at 43. The Board reasons 

that “[i]n at least some counties, where there is an abundance of licenses available,” 

disclosure of the requested information “would more likely than not create an 

unwanted chilling effect resulting in fewer bids and/or less bid amounts.” Id.

Requester counters that the Board fails to invoke the exemption 

contained in RTKL Section 708(b)(1)(i) because the affidavits it supplied attested 

only to the possibility that disclosing the requested information may result in a loss 

of revenue. Requester’s Brief at 29-30.

We agree with Requester and the OOR that the Board’s evidence fails 

to establish that the disputed records are exempt under RTKL Section 708(b)(1)(i). 

“Section 708(b)(1)(i) of the [RTKL] exempts from disclosure ‘[a] record, the 

disclosure of which would result in the loss of Federal or State funds by an agency 

or the Commonwealth[.]’” Cent. Dauphin Sch. Dist., 199 A.3d at 1016 (emphasis 

in original) (quoting 65 P.S. § 67.708(b)(1)(i)). This exemption “requires more than 
32

the mere possibility of a loss of [] funds.” Id. Here, the affiants attesting on behalf 

of the Board merely posit that disclosing the requested information would 

improperly influence the current market for restaurant liquor licenses across the 

Commonwealth, resulting in lower bid amounts in some counties and undermining 

the Board’s strategy in conducting auctions. See Worley Affidavit at 6, ¶¶ 31-32, 

R.R. at 77; Vigoda Affidavit at 2, ¶ 7, R.R. at 152; Kelly Affidavit at 2, ¶ 7, R.R. at 

249. 

We agree with the OOR that these vague affidavits do not carry the 

Board’s burden in establishing the exemption as they merely speculate regarding the 

possible loss of future revenue. See W. Chester Univ. of Pa., 124 A.3d at 393 

(internal citation and quotation marks omitted) (stating that “[a]n affidavit 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” under the 

RTKL); Pa. State Police v. Muller, 124 A.3d 761, 765 (Pa. Cmwlth. 2015) (holding, 

for purposes of establishing an exemption from disclosure under the RTKL, that an 

“affidavit must be detailed, nonconclusory, and submitted in good faith”). Thus, the 

Board fails to establish that the requested information would result in the loss of 

state funds and is, therefore, exempt pursuant to RTKL Section 708(b)(1)(i).

Finally, the Board asserts that the OOR erred in failing to address its 

argument that the requested information is exempt from disclosure under Section 

708(b)(1)(ii), 65 P.S. § 67.708(b)(1)(ii), because its disclosure would cause personal 

harm to existing licensees. Board’s Brief at 44. While the OOR did err in failing to 

address this argument, such error was harmless. 

RTKL Section 708(b)(1)(ii) exempts from public access “[a] record, 

the disclosure of which . . . would be reasonably likely to result in a substantial and 
33

demonstrable risk of physical harm to or the personal security of an individual.” 65 

P.S. § 67.708(b)(1)(ii). In order for this exemption to apply, an agency “must 

demonstrate . . . (1) a ‘reasonable likelihood’ of (2) a ‘substantial and demonstrable 

risk’ to a person’s personal security.” Delaware County v. Schaefer ex rel. Phila. 

Inquirer, 45 A.3d 1149, 1156 (Pa. Cmwlth. 2012). This Court noted in Delaware 

County that a risk to a person’s “personal security” may include “a threat to one’s 

financial well-being.” Id. at 1155 (citing Times Publ’g Co., Inc. v. Michel, 633 A.2d 

1233, 1238 (Pa. Cmwlth. 1993), superseded by statute as stated in Office of the 

Lieutenant Governor v. Mohn, 67 A.3d 123 (Pa. Cmwlth. 2013)). 

The Board contends that “any negative effects resulting from the 

disclosure of the requested list [would] also no doubt impact the value of the 

restaurant liquor licenses that are currently held by individuals or businesses in 

Pennsylvania.” Board’s Brief at 44. The Board maintains that disclosure of the 

requested information “may cause a significant decrease in the market demand for 

[restaurant liquor] licenses” available for transfer by licensees “in the private market 

because of potential purchasers being more inclined to wait to buy a license if they 

know the [Board] will be selling additional licenses in a particular county at some 

point in the future, or if there is an abundance of licenses available within their 

county.” Id. at 45. The Board’s arguments are misplaced.

First, the potential harm that the Board references is merely speculative, 

which this Court has previously found to be insufficient for application of the 

personal security exemption. See Governor’s Office of Admin. v. Purcell, 35 A.3d 

811, 820 (Pa. Cmwlth. 2011) (stating that “[m]ore than mere conjecture is needed” 

to establish the “personal security” exemption under the RTKL). Second, the 

potential harm that the Board references is not the type of harm that is generally 
34

protected under the personal security exemption of Section 708(b)(1)(ii). This Court 

has interpreted the term “personal security” to “comprise innumerable rights, 

including the right to privacy and confidentiality, and the right to be secure in one’s 

possessions, monies, investments and benefits, and the freedom from identity theft.” 

Delaware County, 45 A.3d at 1155. Section 708(b)(1)(ii) has been traditionally 

applied to protect an individual’s identifying information, such as a home address, 

birthdate, or social security number. See Pa. State Educ. Ass’n v. Dep’t of Cmty. & 

Econ. Dev., 148 A.3d 142, 144 (Pa. 2016) (holding that this “Court erred in ruling 

that there is no constitutional right to privacy in one’s home address in connection 

with RTKL requests,” and that this right “may not be violated unless outweighed by 

a public interest favoring disclosure”); Purcell, 35 A.2d 814, 821 (concluding that 

the “personal security” exemption protected the birthdates of state employees where 

disclosure would substantially heighten the risk of identity theft and fraud); Times 

Publ’g Co., Inc., 633 A.2d at 1238 (holding that “public disclosure of [firearms] 

licensees’ . . . social security numbers . . . is [] protected by the personal security 

exception to the [former Right-to-Know Act],” noting that “a person’s social security 

number may be ‘misused’ to ‘obtain a person’s welfare benefits or Social Security 

benefits, order new checks at a new address on that person’s checking account, 

obtain credit cards, or even obtain a person’s paycheck’”). Thus, the Board could 

not establish that disclosure of the requested information would create “(1) a 

‘reasonable likelihood’ of (2) a ‘substantial and demonstrable risk’ to a person’s 

personal security.” Delaware County, 45 A.3d at 1156.
35

Accordingly, albeit partially on other grounds discussed herein,19 we 

affirm the final determination of the OOR.

__________________________________

CHRISTINE FIZZANO CANNON, Judge

 

19 This Court may affirm on grounds different than those relied upon by the court or agency 

below if such grounds for affirmance exist. Belitskus v. Hamlin Twp., 764 A.2d 669, 671 (Pa. 

Cmwlth. 2000); Continuous Metal Tech., Inc. v. Unemployment Comp. Bd. of Review, 740 A.2d 

1219, 1224 (Pa. Cmwlth. 1999).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsylvania Liquor Control Board, :

Petitioner :

:

v. :

:

The Honorable Frank Burns, : No. 1159 C.D. 2019

Respondent :

O R D E R

AND NOW, this 16th day of June, 2020, the July 24, 2019 final 

determination of the Office of Open Records is hereby AFFIRMED.

__________________________________

CHRISTINE FIZZANO CANNON, Judge