IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mission Pennsylvania, LLC, : Petitioner :

:

v. : No. 185 C.D. 2018

: Wallace McKelvey and PennLive : and The Patriot

- News, : Respondents :
Terrapin Investment Fund 1, LLC, : Petitioner :

:

v. : No. 186 C.D. 2018

: Wallace McKelvey and PennLive : and The Patriot

- News, and The : Pennsylvania Department of Health, : Respondents :
SMPD Manufacturing, LLC : and SMPB Retail, LLC, : Petitioners :

:

v. : No. 187 C.D. 2018

: Wallace McKelvey, PennLive : and The Patriot

- News, : Respondents :

Cresco Yeltrah, LLC, : Petitioner :

:

v. : No. 188 C .D. 2018

: Wallace McKelvey, PennLive : and the Patriot

- News, : Respondents :Pennsylvania Department :

of Health, : Petitioner :

:

v. : No 189 C.D. 2018

: Wallace McKelvey and PennLive, : Respondents :
KW Ventures Holdings, LLC, : Petitioner :

:

v. : No. 190 C.D. 2018

: Argued: February 1 2 , 2019 Wallace McKelvey and Pennlive : and the Patriot

- News, : Respondents :

BEFORE: HONORABLE MARY HANNAH LEAVITT, Presid ent Judge

HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE ELLEN CEISLER, Judge

OPINION BY JUDGE SIMPSON FILED: June 4, 2019

These consolidated appeals arising from an acces s dispute under the
Right

- to

- Know Law (RTKL) 1 involve complex procedural and substantive questions,
including the public nature of applications under the Medical Marijuana Act (Act)

. 2
We are also presented with requests to supplement the record developed before the
Office of Open Records (OOR) , thus enlisting this Court’s fact

- finding functions.

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

- 67.3104

.

2 Act of April 17, 2016 , P.L. 84, 35 P.S. §§10231.101

- 10231.2110

.2 T he Department of Health (D OH ) and five successful applicants for
medical marijuana grow er/processor or dispensary permits ( collectively, Permittees), 3
challenge OOR’s f

inal d etermination , granting in part and denying in part the request of Wallace McKelvey, PennLive and T he Patriot

- News ( collectively, Requester)
seeking unredacted copies of their six permit applications pursuant to the RTKL

. OOR directe d DOH to disclose Permittees’ a pplications with minimal redaction of
personal identifiers and proven trade secrets

.

We de cline to supplement the record . O n the record developed below

,

we reverse OOR’s final determ ination in part to allow redaction of specif i ed facility
and systems security information, and we affirm in all other respects.

I. Background

A. Legal Framework
The General Assembly enacted the Act, effect ive as of May 17, 2016,

to establish a framework for legalization of medical marijuana in the Commonwealth

. DOH i s the Commonwealth agency responsible for administering the Act , including
promulgat ing temporary regulations necessary to perform this function

. Secti on 301
of the Act, 35 P.S. §10231.301; Section 1107 of the Act, 35 P.S. §10231.1107.

Attendant to this authority, DOH promulgated temporary regulations and established
an application process for busin e s s es seeking permission to operate as medical
marijuan a organization s

. See 28 Pa. Code §§1131.1

– 1191.33.

3 In addition to the appeal filed by the Department of Health (DOH) (No. 189 C.D. 2018), Permittees filed petitions for review as follows: Mission Pennsylvania, LLC (Mission) (No. 185 C

. D

. 2018); Terrapin Investment Fund 1, LLC (No. 186 C

. D

. 2018) (Terrapin) ; SMPD Manufacturing, LLC and SMPB Retail, LLC (Harvest) ( No. 187 C

. D

. 201 8 ) ; Cresco Yeltrah, LLC (Cresco) (188 C .D. 2018); and KW Ventures Holdings, LLC (KW Ventures) (No. 190 C

. D

. 2018).3 Section 302(b) of the Act (relating to public disclosure ) provides that
applications “are public records and shall be subject to the [RTKL].” 35 P.S.
§10231.302(b)

. DOH’s temporary regulation as to the same subject mirrors the Act by

list ing applications a s “public records

... subject to disclosure under the [RTKL]

.... ”
28 Pa. Code §1141.22 (Temporary Regulation). H owever, the Temporary Regulation

states : “the following information is considered confidential, is not subject to the

[RTKL] , and will not otherwise be released

... unless pursuant to court order

... information regarding the physical features of, and security measures installed in, a
facility.” 28 Pa. Code §1141.22(b)(9) (em phasis added)

.

Further, i n the application i nstructions, DOH advised all applicants to

submit redacted and unredacted cop ies of their application s with the understanding

that redacted copie s would be posted on i t s public website. Although t he instructions

stat e all submissions would be subject to disclosure under the R TKL

, they also quote the Temporary Regulation which extend ed protection to “information regarding
physical features of and security measures installed in a facility, information i n the
electronic tracking system ” and other information subject to protection by the RTKL
or as proprietary un d er another law. Reproduced Record 4 ( R.R. ) at 46a.

DOH received d ozen s of applications comprised of thousands of pages,
both grower/processor (GP) applications and dispensary (DS) applications. DOH
received all applications by March 2017 . I n late June 2017, DOH announced the
award of 12 GP permits and 27 DS permits , inclu ding those of Permittees

.

4 The reproduced record does not comply with Pa. R.A.P. 2173 in either its printed or electronic form; notably, the two versions differ. C omplicating our review and refe r ences to the record, parts of the reproduced record lack any pagination , and n umbering is completely absent for hundreds of fully redacted pages . In such instances, we cite the certified record.4 B. Procedural History

In May 2017, Requester initially sought all applications for GP permits

and all successful applications f or DS permits (Request)

. In July

, D OH denied the
Request in part

, referring Requester to the redacted copies of GP applications posted

on its website , and den ying access to DS applications that were not posted yet

. DOH’s

denial grounds included the right to pr ivacy in personal i nformation as well as RTKL
exceptions contained in Section 708(b)

, 6 5 P.S. §6 7.708(b), as to personal identifiers,
trade secrets and confidential proprietary information, and records revealing

infrastructure or computer security i nformation

. DOH explained that its redactions,
as opposed to Permittees ’ redactions it allowed , were m arked as “DOH redacted

. ”

Requester appealed to OOR only as to Permittees’ six a pplications

, both

GP and DS applications from Cresco

, the GP application from Terrapin

, and DS
applications from KW Ventures

, Mission and Harvest (collectively

, Applications).
Requester a sserte d DOH lacked a legal basis for its redactions, emphasizing the
disparity of redaction among Permittees. It argued the Applications were public

records as a matter of law under the Act. Requester also noted the legislativ e intent
and public interest in disclosure of the redacted information

. See Certified Record
(C.R .), Item No. 1 ( Verified Appeal , Requester Mem

. at 4

- 5, 9

- 10 ).

OOR requested evidence and directed DOH to notify thir d parties under

Section 1101(c) of the RTKL, 65 P.S. §67.1101(c)

. Once not i fied , all Permittees asked
to participate, submitting argument in support

. Cresco also submitted an affidavit of its

G eneral C ounsel John Figone (Figone Affidavit)

, and Harvest and Terrapin submitted

unverified exemption logs

.5 In its position statement, DOH admitted t o some improper redact ion. 5
C.R., Item No. 4 ( August Submission , at 3); R.R. at 37a. DOH also submitted a n

affidavit of Program Director John Collins generally describing the varied redact ions
(Director Affidavit). R.R. at 48a

- 49a. It contained a citation to DOH’s T emporary

R egulation, 28 Pa. Code §1141.22(b)(9)

, and a general reference to the RTKL

.

Director explain ed DOH’ s redaction proces s , attest ing DOH only

redacted as follows : inform ation marked as confidential proprietary by Permittees if

not otherwise redacted ; personal and financial information ; and information related

to building and infrastructure security. Director did not connect these redactions to
specific part s of the Applications or differentiate between Permittees’ Applications

. He also alleged no harm related to disclosure

. N onethel ess, DOH redacted entire

parts of the A pplications including: Section 10 ( s ecurity / s urveillance) ; Section 11C
(transport plans) ; Secti on 12B ( storage plans ) ; Section 14C ( inventory management ) ; Section 15 of the DS and Section 16B of the GP application s ( diversion prevention ) ;

Section 15B o f the GP application ( waste disposal ) ; and Attachment D (site and
facility plans) of both GP and DS applications

. R.R. at 43 a

.

Significantly, DOH did not review any of the redacted material before
preparing its August Submission. I nstead, DOH reviewed the already redacted
applications, relying on Permittees’ redactions

, as evinced by the Director Affidavit.

DOH claimed it could not review the unredacted A pplications based on the volume
of records initially sought in the Request.

5 For example, DOH initially redacted labeling processes from DS applications when it did not redact the same information from GP applications.6 Realizing that DOH did not re view the Applications in un redacted form

before assert ing exe mptions, in September 2017, OOR stay ed the matter to allow

DOH to evaluate the propriety of Permittees’ redactions, to assert any applicable
exemptions and to submit supporting evidence

. R.R. at 72a

- 8 4a (September
Opinion). OOR a sked DOH to estimate the time for reviewing the A pplications , and
accepted DOH’s verified estimate of 60 days. See R.R. at 95a

- 98 a (DOH Estimate).

Requester sought reconsideration of the stay because only “ 2,84 4 pages ”

remained at issue

, and because the stay allowed DOH a second opportunity to
support exceptions asserted months before

. R.R. at 97a ( quoting DOH ). OOR

denied reconsideration.

DOH submitted its response early, not ing it kept Permittee s ’ redactions

for confidential proprietary / trade secret s and security information. R.R. at 104a

- 37a
(November Submission)

. Specifically

, DOH represented it :

lifted clearly improper redactions ... maintained [Permittee s’ ] redactions that were proper and appropriately cited ... [and] redactions that may not have been properly cited, but were clearly exempt under another subsection. [ It ] further maintained redactions where [Permittees] asserted confidential proprietary, trade secret or personal safety and security exemptions , as [DOH] is unable to stand in the shoes of the individual or entity claiming such exemptions. Rather

, [DOH] defers to the OOR’s determination as to the propriety of these redactions

.

R.R. at 104a (emphasis added). DOH also submitted a n exemption log as to each
Application

. See R.R. at 114a

- 3 6a (DOH Logs)

. The DOH L og s w ere veri fied by

its open records officer attesting the “records withheld are described in the preceding
exemption log” without additional description in the verification

. R.R. at 115a,7

121a, 124a, 129a, 131a , 137a

. DOH did n ot submit affidavits describ ing the
information redacted, or explain ing the risks (if any) implicated by disclosure

.

DOH’s November Submission was similar to its August Submission.
DOH asserted its Temporary Regulation and the infrastructure security exception in
Section 708(b)(3) of the RTKL, as to several sections of the Applications in their
entirety. However, i n addition to th os e set forth in its August Submission , DOH also

list ed sections of the Applications corresponding to sanitation and safety (Section 16
of DS, Section 20 of GP), and recordkeeping (Section 17 of DS, Section 22 of GP)
as protected on security grounds

. Compare R.R. at 43a, with R.R. at 110a.

Requester responded to DOH’s November S ubmission, outlining the

deficiencies in the exemption logs submitted by DOH and Permittees to date. R.R.

at 3615a

- 32a. OOR then granted Permittees’ requests to participate, allowing them
to submit additional evidence. Only Terrapin did so. R.R. at 3636a

- 74a.

In December 2017, Terrapin submitted another brief and four affidavits

to support its redactions. As to the confidential nature of its financial information

, Terrapin submitted the affidavit of Director of Government Affairs Shawn Coleman
( Coleman Affidavit)

. R.R. at 3651a

- 56a. As to infrastructure and physical security,

it submitted the affidavit of Director of Information Technology James Wenzl (We n zl
Affidavit)

. R.R. at 3658a

- 62a. As to trade secret s, Terrapin submitted t wo affidavits
regarding their secrecy. It submitted t he affidavit of Director of Cultivation Ian Peak

as to its growing and harvesting processes (Peak Affidavit), R.R. at 3664a

- 68a, and

of Director of Infused Product Manufacturing Jef Frick

, as to its extraction and8

production processes (Frick Affidavit) . R.R. at 3670a

- 74 a. In its brief , Terrapin
adopted DOH’s arguments as to personal identifiers and argued the Applications do
not qualify as “ financial records ” under the RTKL

.

Cresco, Mission and KW Ventures relied on their prior submissions.

Ha rvest attempted to submit additional argument and more detailed exemption logs

, but OOR did not consider t he submission beca use it was untimely and unsworn.

Based on the evidence submitted , OOR issued its final determination
granting ac cess to most of the Application s, upholding min imal redaction of personal

i nformation under the constitutional right to privacy and as enumerated in Section
708(b)(6) (i) of the RTKL, 65 P.S. §67.708(b)(6) (i)

, and allowing Terrapin’s

redaction of trade secr ets. See McKelvey v. Dep’t of Health

, OOR Dkt. No. AP

2017

- 1443 (issued January 12, 2018) (Final Determination)

. As a matter of law,

OOR construed the Act to allow redaction of the A pplications in accordance with

the RTKL. OOR also concluded KW Ventures , Mission and Harvest did not prove
any exemptions because their unsworn submissions were not competent evidence.

Overall, OOR noted deficiencies in the evidence submitted. As DOH’s

evidence lacked sufficient detail a bou t security issues , OOR upheld redaction of only
“plans, specifications, including architectural drawings” in Attachment D as clearly

exempt under t he Temporary Regulation

. Id. at 50. OOR rejected Cresco’s Figone

Aff idavit as vague and conclusory . It also rejected as insufficient Terrapin’s evidence

as to infrastructure security and the confidential ity of its financial information

.9 Ultimately , OOR directed DOH to disclose the Applications with few

redacti o n s: specified parts of Attachment D ; personal information ( birth dates, street

addresses

, personal identification numbers, bank account numbers

, organ donor status
and photographs ) ; and

, as to Terrapin only , redaction of proven trade secrets.

DOH filed a petition for review from the Final Determination, asserting

OOR erred i n applying its Temporary Regulation and Section 708(b)(3) of the RTKL
so narrowly

. It claimed all security

- related redactions should have been upheld.

Permittees filed their respective petitions for review. Mission alleg ed

OOR erred in a pply ing the right to privacy and the RTKL exceptions

. KW Ventures

a rgu ed OOR erred in not upholding all r edaction s under the Temporary Regulation

. 6
Terrapin a sserted its affidavits and exemption log met i ts burden of proof as to its

extensive redaction. Cresco and Harvest, represented by the same counsel, contended
the Applications were proprietary in their entirety and alleged OOR erred in applying
the RTKL exceptions

. Harvest claim ed its unsworn exemption log provided sufficient

detail

, whereas Cresco relie d on the Figone Affidavit to prove its exemptions

.

Requester did not cross appeal as to the redactions OOR upheld

.

In addition, DOH asks this Court to supplement the record , claiming it

relied on Permittees’ redactions and so did not assert or su pport its own exemptions

6 KW Ventures did not file a brief or join any other party’s brief.10

to the redacted information

. Mission also seek s to supplement the record with an affidavit from its principal regarding security measures t a k en in its facilities. 7

II. Discussion
Before reaching the merits, we consider the requests to supplement the
record filed by DOH and Mission.

A. Additional Evidence / Request s to Supplement

DOH asks this Court to allow it to supplemen t the record with a more detailed exemption log. Mission asks to submit an affidavit. Neither party offers a
reason for neglecting to submit the evidence to OOR.

Generally, this Court declines to serve as fact

- finder, a “role ... best
reserved for unique occasions .” Dep’t of Labor & Indus. v. Heltzel

, 90 A.3d 823, 834
(Pa. Cmwlth. 2014) ( en b anc )

. Where OOR’ s “record contains no information on
[records ’ ] nature and content,” we may supplement the record. Pa. State Police v.

Grove , 119 A.3d 1102, 1105

- 06 (Pa. Cmwlth. 2015), aff’d , 1 61 A.3d 877 (Pa. 2017).

An appeals officer has discretion in developing the record , and may
request evidence or explanation from the parties

. See Dep ’ t of Educ. v. Bagwell

, 114 A.3d 1113 (Pa. Cmwlth. 2015). Nevertheless, “ i t is not incumbent upon OOR
to request additional evidence when developing the record. R ather, it is the parties ’

burden to submit sufficient evidence to establish material facts.” Highmark Inc. v.

Voltz , 163 A.3d 485, 491 (Pa. Cmwlth. 2017) ( en banc )

.

7 In their petitions for review, Harvest and Cresco requested this Court to accept additional evidence or to remand to allow OOR to accept additional evidence as alternative relief.11 To the extent the record developed before OOR is inadequate, DOH

and Permittees are at fault for that inadequacy. Lack of evidence, when the parties
and participants had a full opportunity to submit evidence to the fact

- finder, is not a

valid reason for supplementing the record. Id.

We are unmoved by DOH’s contention that it was unable to evaluate
the unredacted Applications based on the sheer volume of records. T he time t o submit
evidence support ing the redactions was the appeals officer stage , not the r equest stage

. As s uch , the alleged volume of records sought in the r equest stage o ffers no excuse.

During the appeals officer stage, DOH had the onus to review only six

A pplications. At th at t im e, only “ 2,844 pages ” we re at issue. R.R. at 97a ( DOH

Estimate , ¶11). Indeed, OOR allowed D OH to set its own time frame for a response

. By issuing a stay, OOR afforded DOH additional time and opportunity to raise any
applicable exemptions and remedy the identified deficiencies in its review process.
DOH neglected to do so. Instead, it responded early

, and its November Submission

was subs tantially s imilar to its August Submission. Compare R.R. at 43a (August
Submission), with R.R. at 110a (November Submission).

Critically, DOH offered no reason for not submitting the evidence
comprised in its request to supplement the record when it had the chance to do so

before OOR. DOH has been subject to the RTKL in its current form for more than

a decade. During that time, this Court’s decisional law consistently underscores the
necessity for evidence substantiating how asserted exemptions apply.12 Similarly, Mission offered no cause for not submitting an affidavit when

it had the opportunity. In December 2017, over Requester’s objection, OOR allowed

Permittees ad ditional time t o submit evidence support ing their redactions after
Requester detailed the deficiencies in DOH’s and Permittees’ prior submissions.

O nly Terrapin submit ted additional proof to remedy the identified deficiencies.

Moreover, allowing additi onal evidence at the judicial review stage has
implications beyond the present matter. To ensure the RTKL offers an expedient
means of access to public records, parties withholding information must be held to
their burden of proof

. A ccepting additional e vidence without cause essentially allows
agencies to withhold records without legal grounds until reaching a Chapter 13 court
, undermining the presumption of openness that form s the foundation of the current

RTKL.

Here, OOR afforded maximum due process and attempted to develop a
thorough record, providin g DOH and Permittees more than ample guidance, time
and opportunity to support the redactions. Therefore, we decline to review the

additional evidence as fact

- finder, or to remand to OOR to re open the r ecord to
accept this evidence . To do otherwise would allow Permittees and DOH a “proverbial [ third] bite at the apple.” Highmark , 163 A.3d at 491.

Accordingly

, we deny the requests to supplement the record on appeal,
and review the merits in our appel late capacity. 8

8 This Court may review appeals involving Commonwealth agencies on the existing record and defer to OOR as the init ial fact

- finder. Dep’t of Labor & Indus. v. Heltzel , 90 A.3d 823 (Pa. Cmwlth. 2014) ( en banc )

. Our review of matters of law is plenary. Id.13 B. Merits
In these consolidated appeals, this Court is tasked with examining
OOR’s analysis of several exemptions, and the evidence submitted to prove them.

Here, t he disparate redaction of the Applications based on different ground s is at issue

,

as DOH accepted Permittees’ redactions without ensuring their consisten cy

.

1. Agency ’s Duty of Disclosure
Under the RTKL, an agency has a mandatory duty to disclose records 9
in its possession unless an exemption applies to protect the request ed information

. Sections 305(a) and 701 of the RTKL, 65 P.S. §67.305(a), §67.701. Entrusted as a
gatekeeper of records , an agency fulfills a public service of guaranteed access , guided by the legal presumption of openness

.

I n the r equest stage, an agency is required to assess the public status of
requested records, and if applicable, specify reasons for denying access with

“ cit at i o n of supporting legal authority

. ” Section 903 of the RTKL, 65 P.S. §67.90 3

. When a record is not exempt, in whole o r in part, an agency “shall” provide access
by inspection or duplication. 65 P.S. §67.701. When parts of a record are public,
meaning not exempt by another law, privilege or exception under Section 708(b) of
the RTKL, 65 P.S. §67.708(b), an agency “shall grant access to” the public parts of
the record pursuant to its disclosure duty. Section 706 of the RTKL, 65 P.S. §67.706.

The RTKL places the statutory duty of disclosure solely on an agency. The RTKL also places the burden of proving any asserted ex emptions squarely on

9 There is no dispute that the Applications are “records” as that term is defined in Section 102 of the RTKL, 65 P.S. §67.102, because they were submitted to DOH for agency action.14

an agency. Section 708(a)(1) of the RTKL, 65 P.S. §67.708(a)(1). The RTKL does
not allow an agency to delegate its disclosure duty or burden of proof to third parties.
As to records that are not in an agency’s possession, this Court explained a third

party contractor may wear the “shoes of [an] agency for purposes of the burden of
proof when the contractor performs a governmental function.” Allegheny Cty. Dep’ t

of Admin. Servs. v. Parsons , 61 A.3d 336, 342 (Pa. Cmwlth. 2013).

Mind ful of the presumption of openness to records in an agency’s
possession, i nclud ing records submitted by private parties, decisional law allow s third parties to raise and defend exemptions to protect their information. Highmark ; Dep’t of Educ. v. Bagwell

, 131 A.3d 638 (Pa. Cmwlth. 201 6 ) ; O ffice of the Governor

v. Bari , 20 A.3d 634 (Pa. Cmwlth. 2011)

. Further, “ agencies are not permitted to
waive a third party ’ s interest in protecting the records. ” Bagwell , 131 A.3d at 6 50

.

We reject DOH’s premise that its voluntary reliance on Permittees’

redac tions merely followed this precedent

. O ur decisions on third

- party rights do

not compel an agency to defer to a third party’s exemption s without regard to the ir
validity or consistent application

. 10

As the responding agency, DOH bore the burden of support ing its
grounds for partially denying access to the Applications. That a third party may be

best suited to provide the most detailed proof does not relieve an agency of its burden.

10 Because Permittees’ level of redaction varied widely , DOH’s denial of access among the Applications was inconsistent. For example, Cresco redacted almost all of Section 14 (Inventory)

, whereas KW Ventures did not redact it, so DOH redacted only a few words for security reasons.15

We disapprove of any attempt to shift this burden to third parties

, particularly as an agency’ s duty of disclosure conflicts with a private par t y’s interest in protection.

2. Public Nature
Records in an agency’s possession are presumed public unless exempt

under a n exception in the RTKL, a privilege, or another law

. Section 305(a) of the

RTKL, 65 P.S. §67.305(a). Also, t he RTKL does not super s ede the p ublic nature of a

record estab lished by statute or regulation. Section 306 of the RTKL, 65 P.S. §67.306.

T he Act expressly provides permit applications “are public records and
shall be subject to the [RTKL].” Section 302(b) of the Act, 35 P.S. §10231.302(b)
(emphasis added)

. W e agree with OOR that the phrase “subject to” renders the

A pplications public except when any RTKL exceptions or other exemption s apply

. 11

Here, DOH and Permittees asserted the varied redactions are protected

under the constitutional right to privacy, certain RTKL exceptions, regarding security
and trade secret/proprietary status, and the Temporary Regulation.

a. Evidence
The party asserting an exemption bears the burden of proving th at exemption applies. Global Tel*Link Corp. v. Wright

, 147 A.3d 9 78 (Pa. Cmwlth. 2016) ; Jones v. Office of Open Records

, 993 A.2d 339 (Pa. Cmwlth. 2010) (agency must prove

its regulation applies )

. Under Section 708(a)(1) of the RTKL , a party must prov e a RTKL exception applies “by a preponderance of the evidence.” 65 P.S. §67.708(a)(1).

11 OOR’s jurisdiction to assess statutory and regulatory exemptions pursuant to Section 305(a)(3) of the RTKL , 65 P.S. §67.305(a)(3), is well

- established. Hel tzel

.16

In this context, w e d efine a preponderance as “ a more likely than not inquiry. ”
Borough of Pottstown v. Suber

- Aponte , 202 A.3d 173, 180 n.11 (Pa. Cmwlth. 2019 ).

O nly three parties submitted evidence to prove the asserted exemptions:

DOH

, Cresco

, and Terrapin. DOH submitted the Director Affidavit and DOH L ogs. Cresco submitted the Figone Affidavit, and Terrapin submitte d multiple affidavits.

KW Ventures , Harvest and Mission did not submit evidence. Therefore , the

reda ctions of their applications are unsubstantiated , except to the extent the evidence
applies to all Permittees

.

b. Exemptions
(i)

. Right to Privacy
First, we consider OOR’s application of the constitutional right to
informational privacy to certain redac tions

. As Requester did not file a cross appeal

,

w e do not disturb the redactions OOR upheld premi sed on this right to privacy.

Article I, Section 1 of the Pennsylvania Constitution inures individuals
with the right “to control access to, or the disse mination of, personal information

about himself or herself.” P a. State Educ

. Ass ’ n v. Dep ’ t of Cmty

. & Econ

. Dev

. , 148 A.3d 142 (Pa. 2016) ( PSEA ). In PSEA , our Supreme Court explained the

intersection of the personal right to privacy with the public right to access under the

RTKL. Applying precedent analyz ing the former law, 12 it reconfirmed that “ certain

types of [ personal ] information ” may be protected under the right of privacy when

12 Act of June 21, 1957, P.L. 390, as amended

, formerly 65 P.S. §§66.1

- 66.9

, repealed by Section 3102(2)(ii) of the RTKL, 65 P.S. §67.3102(2)(ii).17

t he personal rig ht outweighed the public interest in disclosure. 13 Id. at 1 56

- 57
( quoting Tribune

- Review Publ’g Co. v. Bodack , 961 A.2d 110 , 115

- 16 (Pa. 2008) )

. Ultimately, t he Court protecte d an individual’s home address.

As to partial address information, however, our Supreme Court

remanded to the fact

- finder to perform the balancing test of the personal and public

interests. See Reese v. Pennsylvanians for Union Reform , 173 A.3d 1143 (Pa. 2017)

. B alancing of interests by the fact

- finder is a crucial part of priva cy analysis. I d.

Here, after recognizing the competing interests, and an individual’s
right to privacy in a street address, OOR performed the requisite balancing test.
Deferring to OOR as the fact

- finder, we decline to rebalance the interests. I d.

We discern no error in OOR’s analysis of the right to privacy in the

residential addresses of certain individuals. First, OOR e xplaine d how certain types

of information w ere personal, emphasizing that corporate information is not
protected under an indivi dual’s right to privacy.

Second, OOR recognized the importance of “[v]erification of
principals, operators, financial backers or employees” in this budding industry.
Section 602(a)(1) of the Act, 35 P.S. §10231.602(a)(1). Noting the importance of

13 The Court recognized the right to privacy protects three identifiers: s ocial s ecurity numbers

, telephone numbers and home addresses. Butler Area Sch. Dist. v. Pennsylvanians for Union Reform

, 172 A.3d 1173, 1181 (Pa. Cmwlth. 2017) (citing Tribune

- Review Publ’g Co. v. Bodack , 961 A.2d 110 (Pa. 2008); Penn State Univ. v. State Emps.’ Ret. Bd. , 935 A .2d 530 (Pa. 2007); Sapp Roofing Co. v. Sheet Metal Workers’ Int’l Ass’n

, 713 A.2d 627 (Pa. 1998) (plurality op.)).18

sta tutory intent, 14 i t also emphasi zed both the legislature and DOH required
applicants seeking the privilege of engaging in the medical marijuana business to
disclose names and residential addresses of financial backers and principals. The

submission of this information to the government is a condition of engaging in this
regulated industry.

OOR determined the street addresses may be redacted from the
applications but required disclosure of the cities, states and zip codes of the

residential addresses. Accordingly, residential addresses that reveal an individual’s
location are not at issue. We are only evaluating an individual’s privacy right in the

remainder of the residential address

.

DOH’s primary argument that the full name s and addresses are ex empt is that Requester did not cite any public interest in such information. However,
Requester articulated a public interest in identifying individuals who “own, operate

and finance medical marijuana organizations. ” C .R. , Item No. 1 (Verified Appeal

at 5); see also id. at 9; R.R. at 3618a (Requester’s Position Statement). This interest
is substantially similar to the interest OOR identified predicate d on the Act.

The record does not contain support for a reasonable subjective belief

that residential address es would be protected from disclosure. Notably, the
application instructions do not list “residential addresses” as confidential information

, thus indicating the contrary . C.R., Item No. 4 ( Aug ust Submission at 12). Further,

14 Our Supreme Court recognized that in crafting legislation, the legislature is cognizant of privacy interests, such that statutory provisio ns on public nature reflect the balancing test the legislature already performed. P a. State Educ

. Ass ’ n v. Dep ’ t of Cmty

. & Econ

. Dev

. , 148 A.3d 142, 157

- 58 n.8 (Pa. 2016).19

n one of t he parties submitted evidence s upporti ng a subjective expectation in the
privacy of residential addresses submitted in a voluntary application process.

OOR struck an appropriate balance in permitting partial redaction of

addresses here. Th us , we disce rn no error by OOR in analyzing the right to privacy.

(ii)

. Physical & Facility Security
To protect the physical features and security measures of permitted

facilities , DOH and Permittees asserted S ection 708(b)(3) of the RTKL, 65 P.S.

§67.708 (b) (3). DOH and Terrapin also asserted the Temporary Regulation.

( a )

. Facility Security Exception
Section 708(b)(3) of the RTKL protects from disclosure “[a] record, the
disclosure of which creates a reasonable likelihood of endangering the safety or the
physi cal security of a building ... [including] (iii) building plans ” disclosing the
location or configuration of critical systems. 65 P.S. §67.708(b)(3) (iii)

. “For this
exemption to apply, ‘the disclosure of’ the records, rather than the records themselves,

mu st create a reasonable likelihood of endangerment to the safety or physical security

of certain structures

.... ” Suber

- Aponte , 202 A.3d at 18 1 ( citation omitted )

. More
than speculation is required. Carey v. Dep’t of Corr. , 61 A.3d 367 (Pa. Cmwlth. 2013).

OOR concluded that none of the parties met their evidentiary burden
to prove this exception. Reviewing the record as a whole, we disagree.

Terrapin submitted the Wenzl Affidavit to protect its facility security

information. See R.R. at 3658a

- 62a. Wenzl install ed , operat ed and maint ained video20

surveillance and physical s ecurity systems for Terrapin’s Pennsylvania facilities , and

he has a security certification. Wenzl Affidavit, ¶5. He attest e d Terrapin’s redact ion s

includ ed description s of its “security and surveillance systems that are intended to
protect unauthorized entrance into the facility; and to prevent and detect diversion,
theft or loss of any [s]eeds, medical marijuana plants and medical marijuana
products.” Id. , ¶11. T e rrapin also redact e d “information regarding the measures to
protect ... the security and safety of its (i) facility ... exhibits and other attachments
that describe, for example, the manner in which its patient data information is

transmitted, the location of its surveillance and security systems and the process by
which it intends to transport its products.” Id. , ¶16. Wenzl identified Sections 10, 11,
12, 15, 16 and 20 and Attachments C and D as containing such information

.

T he Wenzl Affidavit contains sufficient detail a bout some of Terrapin’ s

redactions on security ground s

. In concluding otherwise, OOR erred.

OOR deemed the Wenzl Affidavit conclusory based on “[t]he breadth
of Terrapin’s argument [...] as it advocates for the redaction of entire sections
without describing the specific information contained therein.” Final Determination

at 26. We disagree with OOR that a party’s legal argument may render its ev idence
conclusory. Argument and evidence are distinct for purposes of assessing whether
an entity satisfied its burden of pro of

. 15 Just as a position statement does not prove an exception, a position statement does not render evidence incompetent . The We nzl

Affidavit stands on its own merit.

15 A n “unsworn position statement does not constitute evidence. Position statements are akin to briefs

... which, while part of the record, are distinguishable from the evidentiary record.” Pa. Game Comm’n v. Fennell , 149 A.3d 101, 104 (Pa. Cmwlth. 2016) (ital ics in original) (quoting Office of the Governor v. Davis , 122 A.3d 1185, 1193

– 94 (Pa. Cmwlth. 2015) ( en banc )).21 However, Terrapin’s redaction of entire sections does not comport with

the narro w construction of RTKL exceptions and the minimal redaction mandate

. Thus , only the location s of security and surveillance measures and the description of
the processes for transmitting patient data and transporting product s contained i n

Sections 10, 11, 12, 15, 16 and 20 and Attachments C and D may be redact ed

.

In addition to describing protec t ed content , Wenzl attested to the danger
posed by disclosure of Terrapin’s security measures

. From his knowledge and
industry ex per ience , h e recogniz ed “credible threats from unauthorized personnel
intent on committing crimes or other unethical actions. ” Wenzl Affidavit, ¶20.
Noting the threat s of diversion, theft and black

- market activity with in the medical

m arijua na industry , Wenzl advised “disclosure of

... security and surveillance measures

... would increase the danger of (i) security breaches; (ii) s ubstantial injury to its staff
and customers and (iii) diversion of its medical marijuana products.” Id. , ¶21.

Based on this evidence

, Terrapin proved the security

- related content of

certain redactions and the danger p osed by their disclosure . Thus, we allow limited

redaction of the above

- described information under Section 708(b)(3) of the RTKL

.

Although it is tempting for this Court to apply th is exception to all

Permittees to the same extent it applie s to Terrapin

, doing so would under mine the
evidentiary requirements of the RTKL. A preponderance of the evidence may be the
lowest burden of proof, but it still requires evidence unless the facts are uncontested

or clear from the face of the RTK L request or the exemption

. Th erefore , o nly security

information described in competent evidence may be redacted.22 The DOH Logs verified by its open records officer are competent
evidence supporting DOH’ s redactions under this exception ( mis

- cited as Section

708 (b)(6)(3) )

, R.R. at 114a

- 36a. DOH ci t ed this exception to suppor t its redactions

from the DS applications submitted by Harv est, Mission and KW Ventures.

As to Harvest ’s application

, DOH redacted part of page 222 (R.R. at
1379a) described as “ S ite P lans/ B lueprint” contained in Attachment C ( relat ing to

property )

. R.R. at 114a. As to Mission ’s application , it redacted a few words on
pages 48, 58 and 61 (R.R. at 2704a, 2714a, 2717a) described as “Detailed Information
Regarding Storage/Secured Areas” contained in Section 12 (Storage). R.R. at 116a.

As to KW Ventures’ application, DOH redacted a few words on pages 94, 112

- 13, and

115 described as “Detailed Information Regarding Storage/Secured Areas” from
Section 14 (Inventory Management) , R.R. at 122a. DOH also reda cted parts and ful l

pages ( correlating to R.R. at 3452a

- 63a) from Section 12 and a few words on pages 451

and 453

- 54 (R. R. at 3465a, 3467a

- 6 9 a) for the same reason

. Lastl y, DOH redacted a

few words from a letter (R.R. at 3563a) described as “ Transport Fleet Deta i ls .” Id.

Based on the surrounding unredacted content of the A pplications,
DOH’s description of its redactions suffice s to trigger this exception

. However

, DOH provided no evidence as to the “ reasonable likelihood of endangering safety” as Section 708(b)(3) of the RTKL requires

. 65 P.S. §67.708(b)(3).

Regardless, as to reasonable likelihood, the record as a whole contains
sufficient evidence regarding the danger s unique t o the medical marijuana industry.

We discern no reason for limiting proof of industry

- wide risks to Terrapin alone.23 T he Wenzl Affidavit establishes that disclosure of specified security

information has a reasonable likelihood of endangering physical security of facilities
engaged in the “legal can nabis industry.” Wenzl Affidavit, ¶8. Moreover, the
application form itself recognizes the threat of diversion. See Sections 15 of the DS
application and 16B of the GP application ( d iversion prevention). Permittees
completed the same application form s eeking information about security measures.

Based on the risks inherent in this cash

- based industry, disclosure of security
measures and locations of surveillance systems presents a credible threat to physical
security of facilities that amounts to more t han mere speculation. Carey

.

Because t h e record as a whole contains sufficient evidence satisfying the
reasonable likelihood prong, we uph old DOH’s minimal redactions under Section
708(b)(3) of the RTKL from the applications of Harvest, Mission and K W Ventures.

A lso

, a s to Cresco

, Figone attested i t s “ application contains detailed
descriptions of its security protocols and surveillance systems[,] [s]chematic drawings
[that] disclose the location of each of the video surveillance cameras, primary power

hook

- ups, facility access points, [and] of the vault and other designated high

- security

areas.” R.R. at 63a ( Figone Affidavit, ¶12 ) . This sufficiently describ es “schematic
drawings” and “detailed descriptions of ... surveillance systems” for redaction. Id.
Accordingly

, th is information may be redacted from Cresco’ s application.

In sum, t he record supports certain r edaction s under Section 708(b)(3)

. Thus, we reverse OOR’s F inal D etermination as to it s application of this exception.24 ( b )

. Temporary Regulation
Only DOH and Terrapin assert ed the Temporary Regulation as an
exemption. 16 Importantly, DOH did not submit any support in g evidence

. Jones

. The
DOH Logs do not cite the Temporary Regulation

, and the Director Affidavit does

not descri be the contents of any of the Applications to support redaction. As such , we

discern no error in OOR allowing limited redaction of Attachment D on this ground

.

(iii)

. Trade Secret & Confidential Proprietary Exception
Permittees claim that various parts of the Applications are protected

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

protects “a record that constitutes or reveals a trade secret or confidential proprietary

information” from disclosure. 65 P.S. § 67. 708(b)(11). We analyze the trade secret
and confidential proprietary aspects of this exception separately. Bari

.

(a) . T rade Secret Status

Section 102 of t he RTKL defines “ trade secret ” in pertinent part as:

Information including a formula, drawing, pattern, compilation, including a customer list, program, device, method, technique or process that:

(1) derives economic value, actual or potential, from no t 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 secre cy.

16 As we allow Terrapin’s redaction of sufficiently described physical security information under Section 708(b)(3) of the RTKL, analysis unde r the Temporary Regulation is unnecessary.25

65 P.S. § 67.102. See also Uniform Trade Secrets Act, 12 Pa. C.S. §5302 (same)

.

A fact

- finder considers six factors to determine trade secret status under
the RTKL: (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. Smi th v. Dep’t Envtl. Prot. , 161 A.3d 1049 (Pa. Cmwlth. 2017)

.

The most important indic ia for determining whether information

constitute s a trade secret are “substantial secrecy and competitive value to the owner.”

W. Chester Univ. of Pa. v. S c ha c kner (Bravo)

, 12 4 A.3d 382 (Pa. Cmwlth. 2015).

Trade secret status is a f

act

- specific inquiry, and must be decided “on a case

- by

- case
basis.” O.D. Anderson, Inc. v. Cricks

, 815 A.2d 1063, 1071 (Pa. Super. 2003).

Permittees had the opportunity to submit ad ditional evidence to OOR
after receiving Requester’s brief outlining the deficiencies in the evidence DOH
submitted. Because the evidence Permittees submitted varies considerably as far as
competence and quality, we review the evidence of each Permittee s eparately.

As to trade secrets, Terrapin submitted the Peak Affidavit and the Frick
Affidavit. These affidavits offer a model for establishing the trade secrets exception.26 Peak attested to his considerable experience in marijuana cultivation
through out the life cycle of the plants. He devoted y e ars to developing the nutrient
regimen, fertilization for growing and enhancing the growth process. See Peak
Affidavit, ¶¶5

- 7. He attested to the competitiveness of the medical marijuana
industry, and the i nterest in producing a high

- quality product. Id.

, ¶¶9, 15. H is
descriptions of Terrapin’s growing and processing methods, nutrient and additive
practices, and harvest processes establish that information constitutes trade secrets.

Frick attested to his experience in extraction processes and the
manufacturing of cannabis products. He explained th is specialized technique was
developed after investing significant time and resources. Accordingly, the Frick

Affidavit establishes the tr ade secret status in t h e extraction and oil manufacturing

process es of cannabis products. Frick Affidavit, ¶¶5, 6, 16

- 18.

Regarding the competitive nature of the industry and the trade secret
status of the growing, cultivation, nutrition, additive

, ex traction and harvest
processes and practices, we deem the Peak Affidavit and Frick Affidavit sufficient

evidence of the first prong of the t rade s ecret exception , a pplicable as to all

Permittees. See

, e.g., Dep’t of Pub. Welfare v. E iseman , 85 A.3d 1117 ( Pa. Cmwlth.
2014) ( en banc ), rev’d on other grounds

, 125 A.3d 19 (Pa. 2015) (recognizing
testimony by e xpert in the field may support multiple managed care organizations’
claims of trade secret status in negotiated rates). Accordingly, these processes are

trade secrets that may qualify for protection if Permittees meet the second criteri on , i.e.

, under taking reasonable steps to maintai n secrecy of the described secrets

.27 As OOR concluded, Terrapin established its reasonable efforts to
maintain secrecy of trade secrets

. See Peak Affidavit, ¶ ¶21

- 23 ; Frick Affidavit ¶¶20

-
23

. N one of the other Permittees sub mitted evidence of th e second prong

.

Other than Terrapin, among Permittees only Cresco submitted

evidence

. A lthough Figone confirme d t he competitiveness of the industry, he did
not attest to any steps Cresco undert oo k to protect secrecy as required to pro ve this
second p rong. W e also defer to OOR’s determination that Figone lacked credibility

because he deemed Cresco’s entire application a trade secret

. Figone Affidavit, ¶ ¶ 5

-
7

.

Because they did not substantiate any steps taken to maintain secrecy,

the trade secret c laims of Cresco, Harvest, Mission and KW Ventures fail. We a l s o affirm OOR’s application of the trade secrets exception to Terrapin

.

(b)

. Confidential Proprietary Information
Only “[c]ommercial 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” is protected by the confidential proprietary exception. Section 102 of

the RTK L, 65 P.S. §67.102. T he measures under take n to maintain secrecy of the

information are important indicators of its confidential nature

. Smith

.28 Because none of the Permittees other than Terrapin submitted evidence
regarding steps for maintaining secre cy, they fail to prove confidential nature. As
such, we consider only whether OOR erred in applying this exception to Terrapin. 17

Terrapin redacted hundreds of pages under this exception. For example,
Terrapin redacted all of Attachment B (Organizational Documents), 689 consecutive

pages , as “ confidential proprietary information. ” 18 R.R. at 1785 a

- 247 4 a. In support

, Terrapin submitted the Coleman Affidavit. R.R. at 3651a

- 56a.

Coleman a dvi sed Sections 3 (Diversity Plan ) , 10 (Security)

, 24 (Business
History) , 27 (Capital Requirements) and 28 (Community Impact) of Terrapin’s
application contained confidential financial information . However, he did n ot describe

the ir content sufficiently so as to permit t otal redaction

. Also, Coleman describe d
efforts to maintain confidentiality of “any and all financial information.” Coleman
Affidavit, ¶16. But the Coleman Affidavit is flaw e d in that it assumes all financial

information is confidential rather than a lleging fact s to establish its con fidentiality.

The fact that the medical marijuana industry is extremely competitive

doe s not substantiate Terrapin’ s extensive redaction here . In removing all indicators
of subject matter

, there is no context for evaluating the redacted content

. See R.R.

17 In its brief, Terrapin also argues OOR erred in not analyzing whether its financial info rmation qualifies as a “financial record” under Section 102 of the RTKL. Terrapin Br. at 23

- 27. It was unnecessary for OO R to analyze the definition because it did not conclude Ter rapin’s financial information was public as a matter of law. Rather, OOR concluded Terrapin did not establish an exception protecting its financial information because it did not submit sufficient evidence.

18 Terrapin also cited Section 708(b)(6) of the RTKL, but it did not explain its application.29

at 1483a

- 2642a. Because Terrapin did not prove confidential nature or describe the

content of its redactions

, we uphold OOR’s application of this exception.

C

. Bad Faith
Lastly, we consider Requester ’s bad faith charge. Requester argue s that

DOH ’ s failure to review unredacted A pplications to assess the appropriateness of

Permittees’ redactions during the request or appeals officer stage constitute s bad faith.

Procedurally, we are not in a position to decide whether DOH

committed bad faith whe n it did not comply with the RTKL during the r equest stage, or with OOR’s directive to evaluate unredacted Applications in the appeals officer

stage. S ee September Opinion. Although Requester refers to OOR ’s findings
regarding DOH’s non compliance with its statutory duties , t he statute is clear that
only a court may make a finding regarding an agency’s bad faith. See Sections 1304
and 1305 of the RTKL, 65 P.S. §§67.1304

- 67.1305 ; Uniontown Newspapers, Inc. v.
Dep’t of Corr. , 197 A.3d 825 (Pa. Cmwlth. 201 8) (single j. op.)

.

Whether an agency committed bad faith is not determined as a matter

of law ; rather, it depends in part on the degree of noncompliance. Uniontown
Newspapers, Inc. v. Dep’t of Corr.

, 151 A.3d 1196 (Pa. Cmwlth. 2016) (declining

to gra nt summary relief as to bad faith). Requester has not enlisted this Court’s fact

finding under Chapter 13 of the RTKL here.

N otwithstanding DOH’s noncompliance with the RTKL, we note this
case is distinguishable from Uniontown Newspapers in that DOH did not mis

-30

identify responsive records. Throughout, DOH was clear that the Applications were

at issue and that DOH relied on Permittees’ redactions without assessing the m

. Whether DOH’ s approach amount ed to bad faith would e n ta i l judici al fact

- finding

.

III. Conclusion
OOR afforded extraordinary due process to DOH and Permittees,
including multiple opportunities to submit evidence supporting their redactions.
DOH and Mission offer no reason for not submitting the evidence they want to

submit to this Court during that process

. Therefore, we deny their applications for
relief seeking to supplement the record.

Based on the existing record , we reverse OOR’s Final Determination
as to the sufficiency of the evidence submitted to protect certain securit y information
pursuant to Section 708(b)(3) of the RTKL . The record as a whole demonstrated the
reasonable likelihood aspect of the building and physical security exception as applied to medical marijuana facilities such that Terrapin and Cresco may support

minimal redaction of the security measures detail ed in their affidavits. We also
uphold DOH’s minimal redaction of the DS applications submitted by Mission,

Harvest and KW Ventures as set forth in the DOH Logs.

W e affirm the F inal D eterminatio n in all other m aterial respects

.

ROBERT SIMPSON, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mission Pennsylvania, LLC, : Petitioner :

:

v. : No. 185 C.D. 201 8

: Wallace McKelvey and PennLive : and The Patriot

- News, : Respondents :
Terrapin Investment Fund 1, LLC, : Petitioner :

:

v. : No. 186 C.D. 2018

: Wallace McKelvey and PennLive : and The Patriot

- News, and The : Pennsylvania Department of Health, : Respondents :
SMPD Manufacturing, LLC : and SMPB Retail, LLC, : Petitioners :

:

v. : No. 187 C.D. 2018

: Wallace McKelvey, PennLive : and The Patriot

- News, : Respondents :

Cresco Yel trah, LLC, : Petitioner :

:

v. : No. 188 C.D. 2018

: Wallace McKelvey, PennLive : and the Patriot

- News, : Respondents :_____________________ ____ ____ 1 Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101

- 67.3104 Pennsylvania Department : of Health, : Petitioner :

:

v. : No 189 C.D. 2018

: Wallace McKelvey and PennLive, : Respondents :
KW Ventures Holdings, LLC, : Petitioner :

:

v. : No. 190 C.D. 2018

: Argued: February 1, 2019 Wallace McKelvey and Pennlive : and the Patriot

- News, : Respondents :

O R D E R

AND NOW , this 4 th day of June , 2019, the Final Determination of the
Office of Open Records is REVERSED IN PART , as to the application of Section
708(b)(3) of the R ight

- to

- Know Law

, 1 65 P.S. §67.708(b)(3), in accordance with the
foregoing opinion, and is AFFIRMED IN PART as to the remaining exemptions.

The applications for relief seeking to supplement the record on appeal
filed by the Departmen t of Health and by Mission Pennsylvania

, LLC

, are DENIED

.

ROBERT SIMPSON, Judge