IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Terry Crouthamel, Jr., :

Petitioner :

: No. 295 C.D. 2018

v. :

: Argued: December 11, 2018

Department of Transportation, :

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY 

JUDGE McCULLOUGH FILED: April 5, 2019

Terry Crouthamel, Jr. (Requester) petitions for review of the February 

21, 2018 Final Determination of the Office of Open Records (OOR) granting in part 

and denying in part his request for documents from the Department of Transportation 

(DOT) relating to a specific construction project pursuant to the Right-to-Know Law 

(RTKL).

1

Facts and Procedural History

On November 6, 2017, Requester filed a request with DOT for the 

following information relative to Project 94465 in DOT’s Engineering District 4:

 

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

1. CS-4171 Certifications for all materials utilized for 

item 4489-2000 UTBWC,[2]including both the UTBWC 

hot mix and the UTBWC Polymer Emulsion.

2. Square Yards completed each shift for item 4489-

2000.

3. Gallons of Polymer Modified Tack Coat used each 

shift for item 4489-2000.

4. Certified Payroll records for all work performed by 

the sub-contractor used for placement of item 4489-

2000.

5. Mix Design for item 4489-2000.

(Final Determination at 2.) On November 14, 2017, DOT invoked a 30-day 

extension to respond pursuant to section 902 of the RTKL, 65 P.S. §67.902. Id. On 

December 11, 2017, DOT provided Requester with redacted payroll records 

responsive to Item 4 of his request, withholding employee names, Social Security 

numbers, and dependent information. Id. However, DOT denied the request as to 

Items 1, 2, 3, and 5 on the basis that the responsive records contain trade secrets and 

confidential proprietary information. Id.

Requester appealed to the OOR, which invited both parties to 

supplement the record and directed DOT to notify any third parties of their ability to 

participate in the appeal. Id. On January 4, 2018, DOT submitted a position 

statement alleging that, with respect to the payroll records, employee names and 

personal identification information are exempt from access under the RTKL, and that 

 

2 UTBWC appears to reference “Ultra-Thin Bonded Wearing Course,” a specific type of 

asphalt application requested by DOT for this particular Project. See Reproduced Record (R.R.) at 

77a.
3

the remainder of the requested information was exempt from access as trade secrets 

and confidential proprietary information. Id.; see also R.R. at 34a-38a. 

DOT attached to this statement a sworn and notarized affidavit from 

Mike Bernetski, Civil Engineer Supervisor for DOT’s Engineering District Office 4. 

(Final Determination at 2-3.) In this affidavit, Bernetski explained that the records 

responsive to Item 4 of the request were certified payroll records submitted by DOT’s 

contractor, Glenn O. Hawbaker, Inc. (Hawbaker) and its subcontractor, Midland 

Asphalt Materials, Inc. (Midland), whose workers were nongovernmental employees. 

(R.R. at 40a.) Bernetski stated that he was informed by Midland that the responsive 

records to the remaining items of the request contained information classified as trade 

secrets and confidential proprietary information because they contained commercial 

and financial information which was privileged or confidential and, if disclosed, 

would cause substantial harm to its competitive position by allowing competitors to 

ascertain its business plans and strategies. Id. Bernetski noted that Midland advised 

that such records included information not subject to public access, such as its 

“proprietary mix formula for asphalt from which production quantities can be 

extracted and pricing information can be reverse engineered.” Id. Additionally, 

Bernetski noted that the “production quantities utilized in a competitive construction 

market [are] proprietary by its very nature” and that disclosure of the requested 

records could be used by a competitor to reverse engineer bid information. (R.R. at 

41a.)

On this same date, Midland submitted a request to participate in the 

appeal, which the OOR granted the next day, accompanied by a position statement 

and a sworn and notarized affidavit of its Senior Executive, William Coleman. (Final 

Determination at 3.) In its position statement, Midland alleged that DOT properly 
4

redacted personal identification information from the certified payroll records and 

properly denied access to the remainder of the request because the information 

contained therein was confidential and proprietary. (R.R. at 44a-50a.) 

In his affidavit, Coleman identified Midland as providing “construction 

materials and services to DOT’s heavy and highway industry.” (R.R. at 51a.) He 

noted that Midland “generally supplies asphalt products and specialized construction 

services to qualified heavy and highway contractors, including but not limited to 

[Hawbaker] for use and incorporation into [DOT] highway construction projects.” 

Id. As part of its business practice, Coleman stated that Midland routinely submits 

quotes for materials and/or services to qualified general contractors in competitive 

bidding processes throughout the United States. Id. He described Project 94465 as 

involving the rehabilitation and improvement of certain sections of I-80 in 

Pennsylvania that included the preservation of existing concrete and the application 

of a thin asphalt overlay. Id. He explained that Midland’s construction services 

include “the application of ultra-thin asphalt layering for preservation of pavement” 

for which it “utilizes a specialized paver to apply its proprietary formula of mix and 

polymer coating.” Id.

Coleman noted that Midland submitted its quote and related information 

to Hawbaker “with the understanding that Hawbaker would maintain the 

confidentiality of Midland’s information and not disclose the information to any third 

party, except as necessary for Hawbaker’s bid to [DOT].” (R.R. at 51a-52a.) He 

noted that highway procurement bids are extremely competitive by nature and 

dependent on the specific technical services offered by a contractor and 

subcontractor, all of whom must closely guard their confidential information to limit 

a competitor’s ability to review and incorporate such information into future 
5

procurements. (R.R. at 52a.) He described the release of information such as that 

requested by Requester as having the potential of impairing competitive trade secrets 

and causing irreparable harm. Id. He explained that Midland “takes great pains to 

ensure that its confidentiality is protected,” including closely restricting access to the 

documents submitted to Hawbaker to essential employees, providing confidentiality 

training to its employees, limiting disclosure of documents to Hawbaker and DOT, 

and destroying all non-essential copies of such documents. (R.R. at 52a-53a.) 

Further, Coleman noted that “[t]here were only a handful of competitors 

offering services in Pennsylvania with the technical expertise and financial resources 

to provide the materials, equipment and construction services for the ultra-thin 

layering necessary for the Project,” and that releasing the requested information

would allow competitors to review how Midland structured its quote to Hawbaker 

and DOT and reverse engineer the same. (R.R. at 53a.) He described Midland’s 

operational plans for the supply and layering of asphalt material as having 

independent economic value to Midland because it is not known by competitors and 

not reasonably ascertainable by proper means. Id.

Following submission of briefs, the OOR requested clarification as to 

which specific records contained the information sought in Items 1, 2, 3, and 5. 

(Final Determination at 3.) Requester submitted a response indicating that the CS4171 certifications identified in Item 1 were standard forms used by material 

suppliers and submitted to DOT and he attached a blank form to his response as an 

exhibit. (R.R. at 71a, 73a-75a.) As to Items 2 and 3, Requester noted that the 

information would be contained in construction documentation that was required to 

be submitted to DOT in accordance with DOT’s “Publication 2 Project Office 

Manual,” relevant portions of which were also attached as an exhibit, as well as in the 
6

daily records of a DOT inspector. (R.R. at 71a, 84a-87a.) As to Item 5, Requester

noted that the information would be contained in a TR-448A Job Mix Formula 

Report, another standard form used by DOT, with a blank form attached as an 

exhibit. (R.R. at 72a, 88a-90a.)

Both DOT and Midland also responded to the OOR’s request for 

clarification. (Final Determination at 3.) DOT submitted an exemption log to the 

OOR identifying the types of records in DOT’s possession, explanations of the 

subject matter of these records, the applicable exemption, the corresponding item 

number in Requester’s request, and the corresponding number of pages. (R.R. at 

95a.) DOT also submitted an additional affidavit from Bernetski certifying that the 

documents reflected in the exemption log would be responsive to the request and 

maintaining that such documents were exempt from disclosure as trade secrets and 

confidential proprietary information. (R.R. at 97a-101a.) In its response, Midland 

simply reiterated its allegations that the information sought in Items 1, 2, 3, and 5 

constituted a trade secret and confidential proprietary information. (R.R. at 91a-93a.)

OOR’s Final Determination

On February 21, 2018, the OOR issued its Final Determination granting 

in part and denying in part Requester’s appeal. More specifically, the OOR granted 

Requester’s appeal solely as to 10 certificates of compliance dated October 18 to 

November 2, 2017, subject to DOT’s redaction of the quantity, lot number, and 

material produced, which the OOR deemed to be confidential. The OOR denied 

Requester’s appeal to the extent that he challenged the redaction of personal 

identification information from the certified payroll records, concluding that DOT 

met its burden of establishing that the redactions were justified under section 
7

708(b)(6)(i)(A) of the RTKL, 65 P.S. §67.708(b)(6)(i)(A),3as well as this Court’s 

decision in Department of Conservation and Natural Resources v. Office of Open 

Records, 1 A.3d 929 (Pa. Cmwlth. 2010) (holding that redaction of personal 

identification information from certified payroll records of third-party contractors 

was proper). The OOR also denied Requester’s appeal to the extent that the 

remainder of the documents sought in Items 1, 2, 3, and 5 contained trade secrets or 

confidential proprietary information and, hence, were exempt from disclosure. The 

OOR concluded that DOT met its burden with respect to these exemptions based 

upon the affidavits of Bernetski and Coleman and the exemption log submitted by 

DOT.

The OOR noted that the 10 certificates of compliance showed the daily 

results of the asphalt plant, including its job mix formula, material class, and asphalt 

mix type. The OOR also noted that the exemption log revealed that the documents 

responsive to Requester’s request included material quantities and mathematical 

equations relative to the computation of materials. The OOR concluded that such 

information was confidential and constituted trade secrets of Midland. Requester

thereafter filed a petition for review with this Court.4

 

3 Section 708(b)(6)(i)(A) provides that certain personal identification information is exempt 

from access under the RTKL, including “a person’s Social Security number, driver’s license 

number, personal financial information, home, cellular or personal telephone numbers, personal email addresses, employee number or other confidential personal identification number.” 

4 Requester did not raise any issue in his petition for review with respect to Item 4 and the 

redaction by DOT of the personal identification information from the certified payroll records. 
8

Discussion

On appeal,5 Requester argues that DOT did not meet its burden of 

establishing that the withheld responsive records constitute or reveal trade secrets or 

confidential proprietary information. We disagree.

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

“public record.” Section 301(a) of the RTKL, 65 P.S. §67.301(a). Pursuant to 

section 305 of the RTKL, 65 P.S. §67.305, a record in the possession of a 

Commonwealth agency shall be presumed to be a public record unless (1) it is 

exempt under Section 708 of the RTKL; (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. McGowan v. Department of Environmental Protection, 

103 A.3d 374, 380 (Pa. Cmwlth. 2014). The agency receiving a RTKL request bears 

the burden of proving that the record is exempt by a preponderance of the evidence. 

Section 708(a) of the RTKL, 65 P.S. §67.708(a). The preponderance of the evidence 

standard, which is “the lowest evidentiary standard, is tantamount to a more likely 

than not inquiry.” Delaware County v. Schaefer ex rel. Philadelphia Inquirer, 45 

A.3d 1149, 1154 (Pa. Cmwlth. 2012). Section 708(b)(11) of the RTKL specifically 

provides an exemption for “[a] record that constitutes or reveals a trade secret or 

confidential proprietary information.” 65 P.S. §67.708(b)(11). 

 

5 As to factual disputes, this Court may exercise functions of a fact-finder, and has the 

discretion to rely upon the record created below or to create its own. Department of Labor and 

Industry v. Heltzel, 90 A.3d 823, 828 (Pa. Cmwlth. 2014). As to a question of law under the RTKL, 

our scope of review is plenary. Id.
9

Trade Secret

Section 102 of the RTKL defines a “trade secret” 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.

The term includes data processing software obtained by an 

agency under a licensing agreement prohibiting disclosure.

65 P.S. §67.102. With the exception of the last clause, this definition is identical to 

the definition of a “trade secret” under section 5302 of the Pennsylvania Uniform 

Trade Secrets Act (Trade Secrets Act), 12 Pa.C.S. §5302.

In determining whether certain information constitutes a “trade secret,”

we look at the following factors: (1) the extent to which the information is known 

outside of the business; (2) the extent to which the information is known by 

employees and others in the business; (3) the extent of measures taken to guard the 

secrecy of the information; (4) the value of the information to the business and to 

competitors; (5) the amount of effort or money expended in developing the 

information; and (6) the ease or difficulty with which the information could be 

properly acquired or duplicated by others. Smith ex rel. Smith Butz, LLC v. 

Pennsylvania Department of Environmental Protection, 161 A.3d 1049, 1064 (Pa. 

Cmwlth. 2017) (citing Commonwealth v. Eiseman, 85 A.3d 1117, 1126 (Pa. Cmwlth. 
10

2014), rev’d on other grounds, 125 A.3d 19 (Pa. 2015)).6 A “trade secret” must be 

an “actual secret of peculiar importance to the business and constitute competitive 

value to the owner.” Parsons v. Pennsylvania Higher Education Assistance Agency, 

 

6 Eiseman involved an RTKL request for any and all documents that set forth the rate of 

payment, including but not limited to capitation rates, that the Department of Public Welfare (DPW) 

paid to Medicaid managed care organizations (MCOs) to provide coverage to recipients in 

southeastern Pennsylvania. This request included the rates paid for dental services pursuant to 

established dental procedure codes and any payments made by an MCO for such services. DPW 

refused to provide the requested information on the basis that the rates constituted trade secrets 

and/or confidential proprietary information that was protected from disclosure by, inter alia, the 

Trade Secrets Act and section 708(b)(11) of the RTKL. The OOR, however, granted an appeal by 

the Requesters and directed DPW to disclose the records, concluding that the records constituted 

financial records to which the exception in section 708(b)(11) did not apply (section 708(c) of the 

RTKL, 65 P.S. §67.708(c), provides that “[t]he exceptions set forth in subsection (b) shall not apply 

to financial records.”). 

On appeal, this Court affirmed the final determination of the OOR relating to disclosure of 

capitation rates but reversed the final determination relating to disclosure of the rates paid by 

MCOs. Regarding the former, we agreed with the OOR that the capitation rates constituted 

financial records to which the exception for trade secrets/confidential proprietary information set 

forth in section 708(b)(11) of the RTKL did not apply. However, we held that the Trade Secrets 

Act could act as “stand-alone statutory basis for protection,” i.e., a “state law that takes precedence 

over other provisions in the RTKL,” including section 708(c). Eiseman, 85 A.3d at 1125. 

Nevertheless, we ultimately concluded that the MCOs failed to establish that such rates constituted 

trade secrets under the Trade Secrets Act. Subsequent to our decision, DPW disclosed the 

capitation rates to Requesters. Regarding the latter, we concluded that the MCO rates were not 

financial records because these rates were not disbursed by an agency, namely DPW, but instead 

were paid by the MCOs to providers. Additionally, we held that such rates constituted confidential 

proprietary information that was protected from disclosure by section 708(b)(11) of the RTKL. 

The dissenting opinion disagreed with the Majority’s conclusion that the MCO rates were 

not financial records simply because they were disbursed by the MCOs rather than DPW and, 

consequently, that the trade secrets/confidential proprietary information exception could apply to 

the same. Further, the dissent disagreed with the Majority to the extent that it concluded that the 

Trade Secrets Act constituted an independent, “stand-alone statutory basis for protection” from 

disclosure. Id. at 1138. Our Supreme Court in Eiseman agreed with the dissenting opinion and 

reversed this Court’s decision as to the MCO rates.
11

910 A.2d 177, 185 (Pa. Cmwlth. 2006). “The most critical criteria are ‘substantial 

secrecy and competitive value.’” Eiseman, 85 A.3d at 1126.

Generally, courts have held that where alleged secrets are commonly 

understood in an industry or readily available to the public, such as in public patent 

filings or trade publications, they do not receive trade secret protection. See, e.g., 

Ozburn-Hessey Logistics, LLC v. 721 Logistics, LLC, 40 F. Supp. 3d 437, 452 (E.D. 

Pa. 2014) (holding that alleged trade secret information that was generally known in 

the industry and available through trade publications was readily ascertainable and 

therefore not entitled to trade secret protections); Midland-Ross Corporation v. 

Sunbeam Equipment Corporation, 316 F. Supp. 171, 177-78 (W.D. Pa.), aff’d, 435 

F.2d 159 (3d Cir. 1970) (finding that “[t]he very act of publishing a trade secret in a 

patent destroys the secretive nature of that which is disclosed therein” and “[m]ethods 

of manufacture or design and details of construction which are matters of general 

scientific knowledge in the industry do not constitute trade secrets”).

However, courts have found “trade secrets” to include “certain business 

and marketing information including the costing and pricing information of an 

employer’s product or services, an employer’s business plans, marketing strategies, 

and financial projections and the terms of specific customer accounts including 

contract expiration dates and revenues generated.” Union Carbide Corporation v. 

UGI Corporation, 731 F.2d 1186, 1191 (5th Cir. 1984) (protecting marketing 

information and strategies); BIEC International, Inc. v. Global Steel Services, Ltd., 

791 F. Supp. 489, 545 (E.D. Pa. 1992) (protecting cost and pricing information for 

the final product); Alexander & Alexander, Inc. v. Drayton, 378 F. Supp. 824, 833 

(E.D. Pa. 1974) (protecting the terms of specific customer accounts); Air Products 
12

and Chemicals, Inc. v. Johnson, 442 A.2d 1114, 1121 (Pa. Super. 1982) (protecting 

business plans and financial projections);. 

Further, courts have held that a compilation of data that has independent 

economic value can be protected as a trade secret. Amerisourcebergen Drug 

Corporation v. American Associated Druggists, Inc., (E.D. Pa., Civil Action No. 05-

5927, filed January 29, 2008), 2008 U.S. Dist. LEXIS 6611, citing National Risk 

Management, Inc. v. Bramwell, 819 F. Supp. 417, 430-31 (E.D. Pa. 1993) (holding 

that customer information, such as costing and price information compiled by a 

business, represents a material investment of time and money and constitutes a 

valuable asset).

We reiterate that the burden on an agency seeking an exemption is very 

low, merely a preponderance of the evidence. In order to meet its burden in the 

present case, DOT submitted the affidavit of Bernetski, Civil Engineer Supervisor for 

DOT’s Engineering District Office 4. Additionally, Midland submitted an affidavit 

from Coleman, a Senior Executive for the company. In his affidavit, Bernetski 

explained that Midland’s personnel understand that certain information “should not 

be subject to public access, including the proprietary mix formula for asphalt from 

which production quantities can be extracted and pricing information can be reverse 

engineered.” (R.R. at 40a.) He also noted that the requested records “contain[ed]

information, that derive[d] independent economic value, which [was] not generally 

known or readily ascertainable,” the disclosure of which would be of economic value 

to a competitor. (R.R. at 41a.) Further, while Requester contends that he is not 

seeking any information regarding Midland’s methods and operations to provide 

ultra-thin layering, but only asks for certifications that Midland used materials that 

meet the Project specifications set by DOT, Bernetski noted that “[t]he production 
13

quantities utilized in a competitive construction market is proprietary by its very 

nature” and that, “[i]n the hands of a competitor, the details submitted by [Midland] 

could be used to reverse engineer bid information.” Id. Hence, he described this 

production information as having “independent economic value” itself. Id.

Likewise, in his affidavit, Coleman stressed that Midland utilized a 

“proprietary formula of mix and polymer coating” for its ultra-thin asphalt as well as 

a “specialized paver” to apply the same. (R.R. at 51a.) He explained that Midland 

submitted its bid to Hawbaker “with the understanding that Hawbaker would 

maintain the confidentiality of Midland’s information and not disclose the 

information to any third party, except as necessary for Hawbaker’s bid to [DOT].” 

(R.R. at 51a-52a.) He described bids submitted in response to a highway 

procurement as, “by their nature, extremely competitive” and something that must be 

protected from use against the bidder “in future procurements.” (R.R. at 52a.) 

Coleman also noted that DOT routinely maintains bids as confidential so as not to 

impair a contractor’s competitive advantage or cause irreparable harm. Id. He 

indicated that Midland takes steps to protect the information contained in its bids, 

including restricting “access to the documents submitted to Hawbaker to only those 

employees essential to preparation of [its] quote”; providing “confidentiality training 

to its employees”; only disclosing the documents to Hawbaker; and destroying “all 

non-essential copies of the documents submitted to Hawbaker and [DOT].” (R.R. at 

52a-53a.) 

If a competitor was able to obtain the information requested by 

Requester herein, Coleman stated that a competitor would be able to “reverse 

engineer Midland’s quote, and then use that information to undercut Midland’s 

ability to contract in the future.” (R.R. at 53a.) More specifically, he indicated that a 
14

competitor could utilize the requested information “to simulate the processes that 

Midland developed for its own use” or “to tailor and to structure their layering 

processes as well as the materials and equipment used to the competitive 

disadvantage of Midland.” Id. As Midland notes in its brief, the proprietary 

methods, techniques, and processes it uses in applying an ultra-thin layering of 

asphalt is its “stock in trade” and neither the description of the same or the data points 

it uses to measure productivity, which Requester essentially seeks herein, are publicly 

available. (Brief of Midland at 21.) 

With the presentation of the affidavits of Bernetski and Coleman, DOT 

and Midland have established by a preponderance of the evidence that the 

information requested by Requester constitutes or reveals “trade secrets” and, hence, 

this information is exempt from disclosure under section 708(b)(11) of the RTKL. 

Confidential Proprietary Information

Section 102 of the RTKL defines “confidential proprietary information” 

as follows:

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 certain information is “confidential,” the 

OOR must consider “the efforts the parties undertook to maintain . . . secrecy.” Smith 

ex rel. Smith Butz, LLC, 161 A.3d at 1064 (citing Eiseman, 85 A.3d at 1128). “In 
15

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.” Smith ex rel. 

Smith Butz, LLC, 161 A.3d at 1064. “Competitive harm analysis ‘is limited to harm 

flowing from the affirmative use of proprietary information by competitors.’” Id.

The efforts taken by Midland to maintain the secrecy of the information 

provided to Hawbaker, and then passed on to DOT, are detailed above and need not 

be reiterated here. Suffice it to say, the efforts undertaken by Midland established

that such information is confidential. As to the potential for disclosure of such 

information to cause substantial harm to Midland’s competitive position, both 

Bernetski and Coleman described the highway construction market as highly 

competitive and detailed the likelihood of substantial injury to Midland should this 

information be released, thereby satisfying the necessary prongs of the competitive 

position analysis. More specifically, Bernetski described the construction market as 

“competitive” and noted that the “production quantities utilized in [such a market] is 

proprietary by its very nature.” (R.R. at 41a.) Additionally, he stated that “[i]n the 

hands of a competitor, the details submitted by the contractor could be used to reverse 

engineer bid information,” which would effectively harm that contractor’s 

competitive position on future contract bidding. Id. 

Likewise, Coleman noted that Midland routinely submits quotes to 

heavy and highway contractors in competitive bidding processes throughout the 

United States and described such processes as “extremely competitive.” (R.R. at 

52a.) He also described the highway construction market, and in particular the 

application of an ultra-thin layering of asphalt, as a “highly-competitive market.” 
16

(R.R. at 53a.) He also explained how the release of the requested information would 

damage Midland’s competitive position, noting that the release of the same would 

allow a competitor to be able to “review how Midland structured its quote to 

Hawbaker and [DOT], including the financial terms, the expertise of its employees, 

and the materials, equipment and technical processes” used for the Project at issue, 

which could be used to undercut Midland’s ability to contract in the future. Id. He 

also stated that a competitor could use this information “to tailor and to structure [its] 

layering processes as well as the materials and equipment used to the competitive 

disadvantage of Midland.” Id. 

Through the affidavits of Bernetski and Coleman, DOT and Midland 

have established by a preponderance of the evidence that the information requested 

by Requester constitutes “confidential proprietary information” and, hence, this 

information is exempt from disclosure under section 708(b)(11) of the RTKL. 

Accordingly, the OOR’s Final Determination is affirmed.

________________________________

PATRICIA A. McCULLOUGH, Judge

Judge Cohn Jubelirer did not participate in this decision.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Terry Crouthamel, Jr., :

Petitioner :

: No. 295 C.D. 2018

v. :

:

Department of Transportation, :

Respondent :

ORDER

AND NOW, this 5

th day of April, 2019, the Final Determination of the 

Office of Open Records, dated February 21, 2018, is hereby affirmed.

________________________________

PATRICIA A. McCULLOUGH, Judge