FCC comment re lack of ICS transparency - June 2016
Download original document:
Document text
Document text
This text is machine-read, and may contain errors. Check the original document to verify accuracy.
Human Rights Defense Center DEDICATED TO PROTECTING HUMAN RIGHTS June 29, 2016 Submitted Online Only The Honorable Tom Wheeler, Chairman Federal Communications Commission 445 12th St. S.W. Washington, DC 20554 Re: Ex Parte Submission Lack of Transparency in the Prison Phone Industry WC Docket 12-375 Dear Chairman Wheeler: In its Second Report and Order and Third Further Notice of Proposed Rulemaking (2nd Order and 3rd FNPRM), released November 5, 2015, the Federal Communications Commission (FCC or the Commission) found adequate evidence to support the position of the Human Rights Defense Center (HRDC) that “members of the public must ‘unnecessarily spend time and money to obtain records’ of ICS contracts.” 1 Not only does this finding still remain true, in the instance reported below, Global Tel*Link (GTL) is now suing HRDC for doing nothing more than asserting its right to obtain public records. Public Records Request On March 27, 2015, I filed a public records request on behalf of Prison Legal News (PLN) with the Pennsylvania Department of Corrections (PA DOC). The request included, in part, ICS contracts and documents detailing kickbacks paid to the PA DOC dating back to 2010, as well as the fees and rates required to be paid by prisoners and their families. In May 2015, the PA DOC produced its ICS contracts with GTL and Securus Technologies; the contracts were so heavily redacted it rendered the documents near-useless. PLN challenged the redactions in an appeal filed on June 3, 2015 with Pennsylvania’s Office of Open Records (OOR). (Attachment 1). GTL submitted a request to participate in the appeal on June 19, 2015, along with a position statement and declaration of Steve Montanaro. (Attachment 2). Securus Technologies filed a request to participate on June 26, 2015, and also filed a position statement and sworn affidavit of Steven Cadwell. (Attachment 3). 1 Second Report and Order and Third Further Notice of Proposed Rulemaking, Released November 5, 2015, at ¶202. P.O. Box 1151 Lake Worth, FL 33460 Phone: 561-360-2523 Fax: 866-735-7136 pwright@prisonlegalnews.org Page |2 The OOR issued a Final Determination on August 12, 2015 in which PLN’s appeal was granted in part and denied in part, and the PA DOC was required to take further action. (Attachment 4). HRDC notes with interest FN1 of the Final Determination, which states that while JPay did not seek to participate as a party with a direct interest, “JPay consulted with the Department regarding redactions.” While those redactions would not have been contained in ICS contracts because JPay does not provide prison phone services (except to the extent that JPay is owned by Securus), this footnote tells us how much influence the kickbacks paid to correctional facilities truly give to vendors. In this case, JPay was able to “consult” with the PA DOC to determine what information taxpayers should be allowed to see via public record requests, making a mockery of the public records process and only strengthening the argument for complete transparency with regard to ICS contracts. A reading of the OOR’s Final Determination shows that the PA DOC had incorrectly redacted bidder financial information (possibly at the behest of the ICS providers); this information is not subject to exemption under Pennsylvania’s Right to Know Law (RTKL) when it is made part of a government contract. (Id. at 5). The OOR further ruled that the PA DOC and GTL “have not met their burden of proving that this information constitutes trade secrets.” (Id. at 13). The OOR also held that the PA DOC had not met its burden of proving that either the Building Plan or signatures in the contracts were exempt from disclosure. (Id. at 19). In conclusion, the OOR determined that PLN’s appeal was “subject to the redaction of tax information, [Securus] trade secrets, and personal identification” and that “the Department is required to provide the Requestor with copies of the records within thirty days.” While GTL has appealed the Final Determination of the OOR concerning its contracts only, Securus and JPay did not, yet the PA DOC still refuses to produce those documents. We most recently contacted the PA DOC regarding its obligation to produce documents under the Final Determination on March 15, 2015. (Attachment 5). The PA DOC is refusing to produce any documents, even documents not under appeal and as to which the OOR’s decision is final and binding, until resolution of the separate GTL appeal. (Attachment 6). GTL Appeal of OOR’s Final Determination GTL has appealed the OOR’s Final Determination (Commonwealth Court of Pennsylvania, No. 1678 CD 2015), and the initial briefing period has concluded. Petitioner GTL’s Brief was filed December 29, 2015 (Attachment 7), and Respondents’ PLN and Paul Wright’s Brief was filed March 16, 2016 (Attachment 8). HRDC would like to draw the Commission’s attention to the vitriolic nature of the Reply Brief filed by GTL on April 18, 2016. (Attachment 9). While this is not the appropriate venue to detail the numerous mischaracterizations contained in GTL’s Reply, we will highlight the title of Section C: “This case is not the place for a crusade.” Id. at 19. Historically, GTL has not been fond of HRDC’s use of the term “kickback” as it relates to payments made to detention facilities in exchange for monopoly ICS contracts. Page |3 In June 2015, HRDC was required to retain counsel to respond to a cease and desist letter issued by GTL that addressed, in part, this very same issue. As Bruce Johnson of Davis Wright Tremaine LLP noted at that time, it is HRDC’s opinion that “the term ‘kickback’ accurately describes the prisons’ practice of collecting a percentage of telephone revenue in exchange for permission to render services to prisoners and their families under a monopoly contract.” 2 HRDC’s opinion on this matter has not changed. In its Reply, GTL completely ignored Mr. Johnson’s further statement that “HRDC has never said or claimed that the kickbacks GTL provides to government officials are illegal” when it informed the Commonwealth Court of Pennsylvania that HRDC’s use of the term kickbacks “is an accusation that GTL is engaged in criminal activity.” The Heightened Need for Transparency in the Prison Phone Industry The Commission is well aware of the need for transparency in the prison phone industry and said as much in its 2nd Order and 3rd FNPRM. While we appreciate the fact that the FCC has “encourage[d] ICS providers and facilities to make their contracts publicly available,” 3 it is not enough. GTL does not post ICS rates on its website. In an answer to a (not-so-easy-to-find) Frequently Asked Question, GTL states: Q. What are the rates for my phone calls? A. Rates vary by facility. To find out what your rates are, listen to the prompts (when the inmate calls you) and press the corresponding number to verify the call rates before you accept the incoming call. You may also contact Customer Service to request the rates for your Facility. (Attachment 10). Have you ever tried to call GTL’s customer service? It is not possible for callers to dispute incorrect rate charges at a later time if all the “proof” of the rate they should have been charged is what a computer told them “verbally” at the time of a call. Rates change – do callers have to check every time they accept a call? Many prisoners’ families are poor, often times with half their income eliminated due to the incarceration of a loved one. These families don’t have access to the legal resources required to fight tooth and nail to obtain ICS contract information, including phone rates, that should be easily accessible under public records laws. Except for HRDC, no one else has ever attempted to gather prison phone contracts nationally and analyze them. No one has ever had the resources to do a comprehensive collection and analysis of jail phone records. The reality is that these contracts and the data related to kickbacks paid by ICS providers to government agencies in exchange for these monopoly contracts are shrouded in secrecy and very difficult to obtain. In the Pennsylvania public records case cited above, HRDC was forced to retain counsel after GTL filed suit against both HRDC 2 3 Human Rights Defense Center Comment for WC Docket 12-375, filed July 14, 2015, Attachment 8. Second Report and Order and Third Further Notice of Proposed Rulemaking, Released November 5, 2015, at ¶202. Page |4 and myself personally when the company appealed the OOR’s Final Determination. (See, e.g. Attachment 7). What are families and concerned citizens supposed to do? We have previously noted there is also criminal corruption in the ICS process, which should not come as a surprise given the secrecy which surrounds the ICS industry. We note that neither the Commission nor anyone else has the staff, time or resources to gather and review this data. To date, HRDC is the only organization which has done so for state prison systems, which has been, and remains, a significant drain on our limited resources; also, we lack the resources to gather the ICS data for the nation’s 3,200 jails in a systemic manner. We have had to sue the state prison systems of Mississippi and Illinois to obtain their prison phone contracts, belying the notion that this information is “public.” For the states we have not had to sue, we have paid thousands of dollars in copying and other fees to obtain this same basic data, which also belies the notion that the information is “free.” Once again, we call on the Commission to require all ICS providers to post their ICS contracts (with rate information), kickback data and all other payments made for these monopoly contracts on their company websites within 30 days of contract execution, and that they be kept up-to-date with easy access to effective dates. We would also ask that such records be retained online and made publicly available for at least ten years. Thank you for your time and attention in this regard. Sincerely, Paul Wright. Executive Director, HRDC Attachment 1 Attachment 2 Attachment 3 Attachment 4 Attachment 5 From: To: Cc: Subject: Date: Attachments: Carrie Wilkinson "RA-docrighttoknow@pa.gov" Paul Wright; Lance Weber Follow-up on RTKL Tracking #524-15/Pennsylvania Office of Open Records Docket No.: AP 2015-0909 Tuesday, March 15, 2016 2:29:38 PM 031516 Ltr to PA DOC re RTKL Docs.pdf Attn: Andrew Filkosky Please see attached correspondence from Lance T. Weber, General Counsel, Human Rights Defense Center. Thank you. Carrie Wilkinson Sr. Litigation Paralegal Human Rights Defense Center 801 Second Ave., Suite 800 Seattle, WA 98104 Office: 206.489.5604 Cell: 206.604.6145 www.humanrightsdefensecenter.org This communication may be confidential, privileged and/or attorney work product. If you received it in error, please notify me and delete it from your system. Any unauthorized use is prohibited and may be unlawful. Human Rights Defense Center DEDICATED TO PROTECTING HUMAN RIGHTS March 15, 2016 Via Email: RA-docrighttoknow@pa.gov Andrew Filkosky, Pennsylvania Department of Corrections Right-to-Know Office Office of Chief Counsel 1920 Technology Parkway Mechanicsburg, PA 17050 Re: Prison Legal News RTKL Request: Tracking #524-15 PA Office of Open Records Final Determination – Docket No. AP 2015-0909 Dear Mr. Filkosky, As you know, my client Prison Legal News, appealed the Pennsylvania Department of Corrections’ (PA DOC) response to its public records request filed under Pennsylvania’s Right to Know Law (RTKL Tracking #524-15). A Final Determination was issued and emailed to all parties (including you) on August 12, 2015 requiring the department to take further action as directed. (Attachment 1 at Page 1). A review of our file indicates that we have yet to receive the documents the PA DOC is required to produce under the Final Determination, and we request that they be produced immediately upon receipt of this letter. Very Truly Yours, HUMAN RIGHTS DEFENSE CENTER By: Lance T. Weber General Counsel LW:cw Attachment P.O. Box 1151, Lake Worth, FL 33460 Phone: 561.360.2523 Fax: 866.735.7136 Email: lweber@humanrightsdefensecenter.org pennsylvania OFFICE OF OPEN RECORDS FINAL DETERMINATION IN THE MATTER OF PAUL WRIGHT AND AND PRISON LEGAL NEWS, Requester v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS, Respondent and GLOBAL TEL*LINK TEL *LINK CORPORATION AND SECURUS TECHNOLOGIES, TECHNOLOGIES, INC., Direct Interest Participants : : : : : : :: : : : : : : : : : : Docket No.: 2015 -0909 No.: AP 2015-0909 INTRODUCTION Paul Wright, "Requester"), submitted a Wright, on behalf of Prison Legal News (collectively, the “Requester”), request ("Department") pursuant to request (“Request”) ( "Request ") to to the Pennsylvania Department of Corrections (“Department”) the Right-to-Know Right -to -Know Law (“RTKL”), ("RTKL "), 65 P.S. §§ §§ 67.101 67.101 et seq., seeking contracts between the Department and various various service providers. providers. The Department partially denied the Request, Request, arguing, arguing, among other reasons, that the release of certain information would threaten public Records (“OOR”). reasons set safety. The Requester appealed to to the the Office For the Office of Open Open Records ( "OOR"). For the reasons set forth in this Final Determination, the appeal is granted in part and denied in part and the Department is required to take further action as directed. directed. 11 FACTUAL BACKGROUND On March 27, 2015, the Request was filed, seeking contracts between the Department and various service providers, including those providing telephone services, video visitation services, electronic messaging services, money transfer services, commissary services, and book ordering services to inmates. The Request also sought various financial records. On March 31, 2015, the Department invoked a thirty-day extension of time to respond to the Requests pursuant to 65 P.S. § 67.902. On April 20, 2015, the Requester granted the Department time until May 20, 2015 to respond to the Request. See 65 P.S. § 67.902(b)(2). On May 12, 2015, the Department partially denied the Request, providing redacted copies of records. The Department argued, among other reasons, that these redactions were necessary because the release of certain information would threaten personal security and public safety, 65 P.S. § 67.708(b)(1)(ii)-(2), or constitutes the financial information of a bidder, 65 P.S. § 67.708(b)(26), contains communications between an agency and its insurance carrier, 65 P.S. § 67.708(b)(27), contains personal identification information, 65 P.S. § 67.708(b)(6), or contains confidential proprietary information or trade secrets, 65 P.S. § 67.708(b)(11). The Department also argued that certain records do not exist. On June 3, 2015, the Requester appealed to the OOR, challenging only the Department’s redactions and stating grounds for disclosure. The OOR invited the parties to supplement the record, and directed the Department to notify third parties of their ability to participate in the appeal pursuant to 65 P.S. § 67.1101(c). On June 10, 2015, the Department confirmed that it notified all “directly interested parties” of the appeal. On June 18, 2015, after receiving additional time to make its submission, the Department submitted a position statement, along with the declarations made under the penalty of perjury of 2 Steven Hilbish, Chief of Support Services in the Administrative Services Division of the Department’s Bureau of Administration (“Bureau”), Major Victor Mirarchi, Chief of Security, Robert Illgenfritz, Administrative Officer in the Bureau, Anthony Miller, Director of Correctional Industries, Michael Knaub, Accountant 3 in the Fiscal Management Division of the Bureau, and Errol Feldman, Chief Administrative Officer of JPay, Inc (“JPay”).1 On June 19, 2015, Global Tel*Link Corporation (“GTL”) submitted a request to participate in this appeal, which was granted on June 22, 2015. Along with its request to participate, GTL also submitted a position statement and the declaration made under penalty of perjury of Steve Montanaro, VicePresident of Sales and Marketing Operations for GTL. On June 26, 2015, Securus Technologies, Inc. (“Securus”) also submitted a request to participate in the appeal, which was granted on June 29, 2015. Along with its request to participate, Securus also submitted a position statement and the sworn affidavit of Steven Cadwell, Senior Account Executive – DOC, West Region. LEGAL ANALYSIS “The objective of the Right to Know Law ... is to empower citizens by affording them access to information concerning the activities of their government.” SWB Yankees L.L.C. v. Wintermantel, 45 A.3d 1029, 1041 (Pa. 2012). Further, this important open-government law 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 their actions.” Bowling v. Office of Open Records, 990 A.2d 813, 824 (Pa. Commw. Ct. 2010), aff’d 75 A.3d 453 (Pa. 2013). The OOR is authorized to hear appeals for all Commonwealth and local agencies. See 65 P.S. § 67.503(a). An appeals officer is required “to review all information filed relating to the 1 JPay did not seek to participate as a party with a direct interest pursuant to 65 P.S. § 67.1101(c); instead, Mr. Feldman affirms that JPay consulted with the Department regarding redactions. 3 request” and may consider testimony, evidence and documents that are reasonably probative and relevant to the matter at issue. 65 P.S. § 67.1102(a)(2). An appeals officer may conduct a hearing to resolve an appeal; however, the decision to hold a hearing is discretionary and nonappealable. Id.; Giurintano v. Pa. Dep’t of Gen. Servs., 20 A.3d 613, 617 (Pa. Commw. Ct. 2011). Here, neither of the parties requested a hearing, and the OOR has the requisite information and evidence before it to properly adjudicate this matter. The Department is a Commonwealth agency subject to the RTKL that is required to disclose public records. 65 P.S. § 67.301. Records in the possession of a Commonwealth agency are presumed to be public, unless exempt under the RTKL or other law or protected by a privilege, judicial order or decree. See 65 P.S. § 67.305. Upon receipt of a request, an agency is required to assess whether a record requested is within its possession, custody or control and to respond within five business days. 65 P.S. § 67.901. An agency bears the burden of proving the applicability of any cited exemption(s). See 65 P.S. § 67.708(b). Section 708 of the RTKL clearly places the burden of proof on the public body to demonstrate that a record is exempt. In pertinent part, Section 708(a) states: “(1) The burden of proving that a record of a Commonwealth agency or local agency is exempt from public access shall be on the Commonwealth agency or local agency receiving a request by a preponderance of the evidence.” 65 P.S. § 67.708(a). Preponderance of the evidence has been defined as “such proof as leads the fact-finder … to find that the existence of a contested fact is more probable than its nonexistence.” Pa. State Troopers Ass’n v. Scolforo, 18 A.3d 435, 439 (Pa. Commw. Ct. 2011) (quoting Pa. Dep’t of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821, 827 (Pa. Commw. Ct. 2010)). 1. The contracts at issue are financial records 4 The RTKL defines “financial records” to include “[a]ny account, voucher or contract dealing with: (i) the receipt or disbursement of funds by an agency; or (ii) an agency’s acquisition, use or disposal of services, supplies, materials, equipment or property.” 65 P.S. § 67.102 (emphasis added). Section 708(c) of the RTKL states that “[t]he exceptions set forth in subsection (b) shall not apply to financial records, except that an agency may redact that portion of a financial record protected under subsection (b)(1), (2), (3), (4), (5), (16), or (17).” 65 P.S. § 67.708(c). Here, the records at issue constitute various portions of contracts that the Department has entered into with service providers. The contracts are financial records under the RTKL, as they involve the Department’s acquisition of services and equipment. See 65 P.S. § 67.102. While some of the information at issue in this appeal is contained in attachments to the contracts, these attachments are part and parcel of the contracts. As the contracts are financial records, they may be redacted only pursuant to certain exemptions under the RTKL. See 65 P.S. § 67.708(c). The Department, GTL, Securus, and JPay argue that the contracts contain bidder financial information that is exempt from disclosure under 65 P.S. § 67.708(b)(26) and confidential proprietary information and trade secrets that are exempt from disclosure under 65 P.S. § 67.708(b)(11). Likewise, the Department argues that the PA Prison Society contract contains a certificate of liability insurance that is exempt from disclosure under 65 P.S. § 67.708(b)(27). However, pursuant to 65 P.S. § 67.708(c), the Department may not redact information on these bases. Accordingly, Sections 708(b)(11), 708(b)(26) and 708(b)(27) of the RTKL do not apply because the contracts at issue are financial records.2 2 While the OOR has previously held that government contracts may be redacted pursuant to Section 708(b)(11), see e.g., Maulsby v. Pa. Dep’t of Corr., OOR Dkt. AP 2014-1480, 2014 PA O.O.R.D. LEXIS 1268, the appropriate legal reason for withholding trade secrets within a contract or other financial record lies under the Pennsylvania Uniform Trade Secrets Act. Commonwealth v. Eiseman, 85 A.3d 1117, 1124 (Pa. Commw. Ct. 2014). 5 However, Section 306 of the RTKL states that “[n]othing in [the RTKL] shall supersede or modify the public or nonpublic nature of a record or document established in Federal or State law, regulation or judicial order or decree.” 65 P.S. § 67.306. As a result, “Section 708(c) cannot dilute operation of another law that provides an independent statutory bar to disclosure.” Commonwealth v. Eiseman, 85 A.3d 1117, 1124 (Pa. Commw. Ct. 2014). 2. The Department may redact confidential tax return information The Department explains that it redacted federal employer identification numbers from the Securus, GTL, PA Prison Society, and Scotlandyard contracts, and a one-page tax return that was attached to the JPay contract. Meanwhile, Mr. Montanaro, on behalf of GTL, attests that the redacted information includes federal tax returns submitted by GTL’s subcontractor, Mid Atlantic Consultants. Section 6103(a) of the Internal Revenue Code (“Code”) prohibits disclosure of “returns” and “return information.” 26 U.S.C. § 6103(a); see also Fort Cherry Sch. Dist. v. Coppola, 37 A.3d 1259 (Pa. Commw. Ct. 2012) (finding that W-2 forms constitute confidential “return information”); Office of the Budget v. Campbell, 25 A.3d 1318 (Pa. Commw. 2011) (same). Therefore, the OOR has held that confidential return information may be redacted from the contracts. See Kerns v. Pa. Turnpike Comm’n, OOR Dkt. AP 2013-0959, 2013 PA O.O.R.D. LEXIS 592. Here, the above-referenced tax returns are explicitly confidential under the Code. See 26 U.S.C. § 6103(b)(1) (defining “return”). Further, federal employer identification numbers are confidential “return information” under the Code. Id. § 6103(b)(2)(A) (defining “return information” to include “a taxpayer’s identity … or any other data, received by, recorded by, prepared by, furnished to, or collected by the Secretary with respect to a return….”); see also 6 Kerns, OOR Dkt. AP 2013-0959, 2013 PA O.O.R.D. LEXIS 592 (allowing the redaction of tax identification numbers). Therefore, the Department may withhold the tax returns and redact the tax return information pursuant to the Code. 3. Some of the redacted information constitutes trade secrets under the Pennsylvania Uniform Trade Secrets Act (“Act”) The Department and the direct interest participants argue that certain information constitutes trade secrets. While the parties cite to Section 708(b)(11) of the RTKL as the basis for withholding these alleged trade secrets, the “Act [i]s a separate statutory defense” separate from Section 708(b)(11). See Eiseman, 85 A.3d at 1125. The Act defines a “trade secret” as: Information, including a formula, drawing, pattern, compilation including a customer list, program, device, method, technique or process that: (1) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. 12 Pa.C.S. § 5302; see also 65 P.S. § 67.102 (defining “trade secret” for purposes of Section 708(b)(11) of the RTKL). The Act protects against “misappropriation” of trade secrets. See 12 Pa.C.S. § 5302; Parsons v. Pa. Higher Ed. Assistance Agency, 910 A.2d 177 (Pa. Commw. Ct. 2006). “Whether information qualifies as a ‘trade secret’ is a highly fact-specific inquiry that cannot be distilled to a pure matter of law.” Eiseman, 85 A.3d at 1126. Pennsylvania courts confer “trade secret” status based upon 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 7 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. See, e.g., Crum v. Bridgestone/Firestone N. Amer. Tire, 907 A.2d 578 (Pa. Super. Ct. 2006) (adopting standard from RESTATEMENT (SECOND) OF TORTS § 757 (1965)). To constitute a “trade secret,” it must be an “actual secret of peculiar importance to the business and constitute competitive value to the owner.” Parsons, 910 A.2d at 185. The most critical criteria are “substantial secrecy and competitive value.” Crum, 907 A.2d at 585. a. Securus contract The Department and Securus argue that a portion of their contract known as the “Implementation Plan” is exempt from disclosure because it constitutes a trade secret. Mr. Cadwell, on behalf of Securus, attests, in relevant part: 7. Proposals submitted in response to a request for proposals are, by their nature, competitive. Each closely guards their confidential information to limit a competitor’s ability to review and to use this confidential information against the creator in future procurements. 8. With respect to the RFP, each of the competitors in this procurement, Securus, CenturyLink and GTL, has engaged in procurement competitions against one another in numerous jurisdictions throughout the United States. In many cases, the competitions are very close and each competitor looks for any advantage to be selected for the contract…. 10. In this case, Securus submitted a proposal in response to the RFP that included several categories of confidential information that Securus takes great pains to ensure that its confidentiality is protected[, including] ... Securus’ implementation plan for providing the telephone services under the contract (“Implementation Plan”). 11. Securus provided the [Implementation Plan] to [the Department] with the understanding that the information would remain confidential. At the time of the submission, Securus marked the documents as confidential and provided a written statement to [the Department] that the records contain a trade secret or confidential proprietary information. 12. Securus took other substantial and remarkable measures to protect the confidentiality of the [Implementation Plan]. Securus closely restricted access to the documents submitted with its proposal to only those employees 8 essential to preparation of Securus’ response to the RFP. Securus provides confidentiality training to its employees. In addition, Securus has not otherwise disclosed the documents or confidential information to any other party except for [the Department]. Finally, Securus destroyed all nonessential copies of the documents submitted to [the Department] in order to further ensure no additional dissemination of this information…. 14. The Implementation Plan contains Securus’ proprietary methods and processes for providing telephone services to inmates under the contract. Securus developed this unique Implementation Plan to, among other things, differentiate Securus and its operations from competitors like CenturyLink and GTL. The Implementation Plan was developed for exclusive used by Securus. 15. Securus has made a considerable financial investment in the Implementation Plan in order to develop the unique methods and techniques. One of the goals of this investment was to provide a system to correctional agencies that is both efficient and effective. 16. Securus competes in a highly-competitive niche market by providing telephone services to inmates within prison systems…. 17. [I]f the Implementation Plan is disclosed to the public, this disclosure would afford Securus’ competitors insight into Securus’ proprietary methods and processes for providing such telephone services for [the Department]. Securus’ competitors would gain insight into how Securus’ system operates, what its components are, how Securus manages the inmate calling process and how Securus generates revenues and incurs costs. Securus’ competitors would know exactly how to identify and to address both the strengths and weaknesses of the Securus’ system for use in future procurement competitions. 18. This information could be utilized by the competitors to tailor and to structure their systems and implementation plan to the competitive disadvantage of Securus. 19. The Implementation Plan derives independent economic value to Securus because it is not known by Securus’ competitors and is not reasonably ascertainable by proper means. Disclosure of this information to Securus’ competitors will allow them to simulate the processes that Securus developed for its own use or otherwise impede Securus’ ability to compete on future procurements. Under the RTKL, a statement made under the penalty of perjury may serve as sufficient evidentiary support. See Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515, 520-21 (Pa. Commw. Ct. 2011); Moore v. Office of Open Records, 992 A.2d 907, 909 (Pa. Commw. Ct. 2010). Based upon the above evidence, Securus has demonstrated that it took various measures to protect the Implementation Plan’s secrecy, including limiting the employees who have access to the 9 Implementation Plan and destroying all “non-essential copies” of the records. Further, Securus has demonstrated that there is a competitive market to provide telephone services to inmates, and that disclosure of the Implementation Plan would allow competitors to gain insight into Securus’ business model and ultimately simulate how it conducts its business. Therefore, Securus has met its burden of proving that the Implementation Plan constitutes a trade secret and is not subject to public access. b. JPay Contract The Department and JPay also argue that portions of their contract constitute trade secrets. Mr. Feldman, on behalf of JPay, attests, in relevant part, regarding the records redacted or withheld by the Department: 5. Facility Descriptions and Screenshots: The above-listed facility descriptions and screenshots … were redacted pursuant to Section 708(b)(11) of the RTKL because they constitute … trade secrets. The facility system descriptions and screenshots are descriptions of the system, products and processes and actual snapshots of computer program screens marketed by JPay to provide the underlying services requested by the [Department]. The facility system and screenshots set forth in the redacted materials describe JPay’s proprietary methods and processes for providing its e-commerce services to the [Department]. JPay has taken a number of steps to maintain the confidentiality of its system and interface depicted in the screenshots, and each client logs into the system with personal login credentials. Clients and JPay employees are the only individuals having access to this information. As such information is not generally available to the public, disclosure of this information would result in substantial economic harm as JPay’s competitors would have access to JPay’s proprietary information. JPay competes in a niche market by providing certain services, including e[-]commerce, communication and financial services to prison systems. Provision of this information to JPay’s competitors will allow them to simulate those processes, or otherwise impede JPay’s ability to compete for the same market share…. Furthermore, JPay has expended considerable financial resources developing the methods and techniques embodied in the redacted information. JPay currently has a pending patent on all of its applications and the related Intel system which is fully integrated with each individual service offered by JPay to the [Department]. This patent-pending system is accessible via the online interface described in the facility descriptions and screenshots JPay is seeking to protect. 10 6. Electronic Payment Flow Chart: The above-listed electronic payment flow chart … is proprietary information and is considered a trade secret. This chart reflects JPay’s proprietary method for processing a funds transfer which is central to one of JPay’s main services offered to the [Department] and its inmates. Such information is not generally available to the public and disclosure of such information would result in substantial economic harm as JPay’s competitors would have access to this confidential information. 7. Implementation Plan: The above-listed implementation plan … is a trade secret. The implementation plan reflects JPay’s proprietary method, technique and process to install and operate its patent-pending system. Such information is generally not available to the public and disclosure of such information would result in substantial economic harm as JPay’s competitors would have access to such confidential information. 8. Customer List: The above-listed customer list … was redacted pursuant to Section 708(b)(11) of the RTKL because it is a trade secret. The definition of trade secret as set forth in the law specifically identifies customer lists as exempt information. Such information is not generally available to the public and disclosure of such information would result in substantial economic harm as JPay’s competitors would have access to such confidential information…. Based on the above evidence, the Department and JPay have demonstrated that the facility descriptions and screenshots are subject to efforts to maintain their secrecy, as only clients and employees of JPay have access to it. Further, the Department and JPay have demonstrated that disclosure of this information will allow competitors in the market to simulate JPay’s processes, ultimately resulting in harm to the competitive position of JPay. Therefore, the Department and JPay have met their burden of proving that this information constitutes a trade secret. Additionally, the Department and JPay have demonstrated that the withheld customer list constitutes a trade secret, as it is specifically defined as a type of trade secret, and subject to efforts to maintain its secrecy. Likewise, the Department and JPay have demonstrated that the electronic payment flow chart and the implementation plan are trade secrets. These records constitute a “method” or “technique” regarding how JPay processes funds and how it installs and operates its system to provide services to inmates. Additionally, the information is not generally 11 available to the public, and pertains to key components in how JPay performs its business. As a result, JPay has demonstrated that the release of this information would cause competitive harm to its business. Accordingly, this information constitutes a trade secret under the RTKL, and is not subject to access. See Overby v. Pa. Dep’t of Corr., OOR Dkt. AP 2010-1014, 2010 PA O.O.R.D. LEXIS 978 (holding that the same information is exempt from disclosure as a trade secret. c. GTL contract The Department and GTL argue that portions of their contract contain trade secrets. Mr. Montanaro attests: 5. This Declaration addresses … [f]inancial information submitted to the Department for both contracts [regarding inmate telephone services and kiosks, respectively] to demonstrate GTL’s financial capability as a prospective contractor, as well as the same information of GTL’s predecessorin-interest and GTL’s subcontractor…. 6. [A]s to GTL’s financials, the redaction numbered 29 by [the Requester] covers the financial information that GTL provided to the Department, at the Department’s request, in connection with the request for proposal process for the kiosk contract, in order to demonstrate GTL’s economic capability. 7. Redaction 45 covers the same information that GTL’s predecessor-in-interest supplied respecting the telephone contract. 8. These two redactions cover information that is highly confidential to GTL. 9. The redacted information includes audited financial statements for GTL over several years, including information about GTL’s assets, income, cash on hand, receivables, expenses, licenses, taxes, property, goodwill, and other assets and liabilities. 10. Each page of the redacted documents is stamped “CONFIDENTIAL.” 11. This redacted information is maintained by GTL with the highest degree of confidence, both internally and externally. 12. Were this information to be disclosed, it would be highly damaging to GTL, a non-public company…. 21. Competitors in this industry keep the subject information confidential. 22. GTL takes steps to limit access to this information internally and externally. 23. This information has independent economic value because, if disclosed, it could be used by a competitor as part of an effort to win business away from GTL. 24. Substantial time and effort was invested to generate this information subject to the redactions. 12 Based on the evidence provided, GTL has demonstrated that it considers the withheld information as confidential, but does not explain the efforts to maintain its secrecy other than stamping records as “CONFIDENTIAL.” Notwithstanding the foregoing, however, GTL does not explain how the withheld information has independent economic value or how the information could be used to “win business away from GTL.”3 As a result, the Department and GTL have not met their burden of proving that this information constitutes trade secrets. See Eiseman, 85 A.3d at 1126-27. d. Other contracts Finally, the Department generally argues that the Scotlandyard contract contains trade secrets. However, other than the conclusory declaration of Mr. Illgenfritz, the Department has not provided any evidence in support of this assertion. See Office of the Governor v. Scolforo, 65 A.3d 1095, 1103 (Pa Commw. Ct. 2013) (“[A] generic determination or conclusory statements are not sufficient to justify the exemption of public records”); Marshall v. Neshaminy Sch. Dist., OOR Dkt. AP 2010-0015, 2010 PA O.O.R.D. LEXIS 67 (finding that an agency's conclusory affidavit was insufficient). Additionally, Scotlandyard has not sought to participate in this matter nor has it submitted any evidence. As a result, the Department has not met its burden of proving that either of these contracts contain trade secrets. See 65 P.S. § 67.708(a)(1). 4. The release of some information would threaten personal security or public safety 3 While the evidence provided by JPay did not specifically explain how disclosure of the information would cause competitive harm, the records at issue pertain to how JPay conducts its business. Here, the records identified by GTL are strictly financial records, and GTL does not explain how disclosing this information would cause competitive harm. 13 The Department argues that certain information is protected under Section 708(b)(1) of the RTKL, which exempts from public disclosure “[a] record the disclosure of which … would be reasonably likely to result in substantial and demonstrable risk of physical harm to or the personal security of an individual.” 65 P.S. § 67.708(b)(1)(ii). To establish this exemption applies, an agency must show: (1) a “reasonable likelihood” of (2) “substantial and demonstrable risk” to a person’s security. Delaware County v. Schaefer, 45 A.3d 1149, 1156 (Pa. Commw. Ct. 2012). The OOR has held that “[b]elief alone without more, even if reasonable, does not meet this heightened standard.” Zachariah v. Pa. Dep’t of Corr., OOR Dkt. AP 2009-0481, 2009 PA O.O.R.D. LEXIS 216; see also Lutz v. City of Phila., 6 A.3d 669, 676 (Pa. Commw. Ct. 2010) (holding that “[m]ore than mere conjecture is needed” to establish that this exemption applies). Based on the underlying purpose of the RTKL, “exemptions from disclosure must be narrowly construed.” See Bowling, 990 A.2d at 824; Gingrich v. Pa. Game Comm’n, No. 1254 C.D. 2011, 2012 Pa. Commw. Unpub. LEXIS 38, *16 (Pa. Commw. Ct. 2012) (“The RTKL must be construed to maximize access to government records”). In the context of a correctional institution setting, a correctional facility need not demonstrate specific prior examples of physical harm to personal security to meet the agency's burden of proof under 65 P.S. § 708(b)(1)(ii). See, e.g., Mele v. Monroe County, OOR Dkt. AP 2011-1230, 2011 PA O.O.R.D. LEXIS 1358; Bernstein v. Pa. Dep’t of Corr., OOR Dkt. AP 2011-1603, 2011 PA O.O.R.D LEXIS 1295 (holding that prison inmate policy manuals are exempt from disclosure); Rizzuto v. Pa. Dep’t of Corr., OOR Dkt. AP 2010-0916, 2010 PA O.O.R.D. LEXIS 900 (records of prison staff observations, opinions, and impressions of inmates and inmates' behavior exempt from disclosure); Chance v. Pa. Dep’t of Corr., OOR Dkt. AP 2011-0539, 2011 PA O.O.R.D. LEXIS 726; Erdley v. Pa. State Empl. Ret. Sys., OOR Dkt. AP 14 2010-0705, 20110 PA O.O.R.D. LEXIS 701; Viney v. Pa. Dep’t of Corr., OOR Dkt. AP 2009- 6 0666, 2009 PA O.O.R.D. LEXIS 125 (first names exempt from disclosure); Lancaster Newspapers, Inc. v. Lancaster County, OOR Dkt. AP 2011-0407, 2011 PA O.O.R.D. LEXIS 652 (knowledge of emergency response techniques could be exploited by inmates); Blom v. Pa. Dep’t of Corr., OOR Dkt. AP 2010-1075, 2010 PA O.O.R.D. LEXIS 888 (mental health information likely to be used by inmates to exploit other inmates to the detriment of institutional security); see also ACLU v. City of Pottsville, OOR Dkt. AP 2010-0231, 2010 PA O.O.R.D. LEXIS 322 (prior knowledge of response procedures would expose police officers to physical harm). The OOR finds credible the professional opinion of individuals assessing the risks of security and will not substitute its judgment for that of those with far more familiarity with the issues involving personal security. See Knauss v. Unionville-Chadds Ford Sch. Dist., OOR Dkt. AP 2009-0332, 2009 PA O.O.R.D. LEXIS 238. The Department also argues that the records are protected under Section 708(b)(2) of the RTKL, which exempts from disclosure “[a] record maintained by an agency in connection with ... law enforcement or other public safety activity that if disclosed would be reasonably likely to jeopardize or threaten public safety ... or public protection activity.” 65 P.S. § 67.708(b)(2). In order to withhold records under Section 708(b)(2) of the RTKL, an agency must show: (1) the records at issue relate to a law enforcement or public safety activity; and (2) disclosure of the records would be reasonably likely to threaten public safety or a public protection activity. Carey v. Dep't of Corr., 61 A.3d 367, 374-75 (Pa. Commw. Ct. 2013). “Reasonably likely” has been interpreted as “requiring more than speculation.” Id. at 375. a. GTL contract Mr. Montanaro, on behalf of GTL, attests, in relevant part: 15 16. The [Investigative Management System (“IMS”)] tool, as well as other similar tools, are at the Department’s disposal in order to detect and obtain intelligence respecting otherwise hidden activities, which it then uses to prevent prison violence and other violations and to otherwise foster institutional security. 17. If details about IMS or similar investigative tools were to be publicly disclosed, then inmates and others could use that information to circumvent the Department’s investigations, thus exposing prison institutions to increased risk of violence. Meanwhile, the Major Mirarchi, on behalf of the Department, attests in relevant part: 6. In accordance with Department Policy DC-ADM 818, “Automated Inmate Telephone System (“AITS”) Procedures Manual,” every inmate telephone call is subject to interception, recording, and disclosure, except those placed to or from an attorney representing an inmate. 7. Electronic surveillance of inmate telephone calls is conducted by the Department in connection with its official law enforcement function of supervising the incarceration of inmates to, inter alia, ensure institutional security by assisting the Department in the detection of illicit or criminal activity by inmates or others and to investigation allegations of wrong-doing made against inmates or others. 8. Correspondingly, records of inmate telephone conversations are maintained by the Department in connection with its official law enforcement function of supervising the incarceration of inmates for the same reasons. 9. Fifty-nine pages entitled “Investigative Reports” have been redacted from the subject contract, from the section entitled “Value Added Communications,” because these pages contain the investigative tools of the Inmate Telephone System that provide facility staff with the capability to generate reports for purposes of, inter alia, criminal and noncriminal investigations undertaken by the Department in accordance with the monitoring of inmate telephone calls. 10. At Section 2 – Inmate Telephone Services, RFP No. 2005-081-011 – Technical Proposal – Tab 6 (“Technical Requirements”), language has been redacted from pages 61 through 63, page 104, and pages 173 through 175 and at Tab 3 (“Management Summary”), language has been redacted from page 12 because this language describes the [IMS], an investigative tool/application that the Department employs to identify and detect inmates involved in illicit and/or criminal activities. 11. Divulgence of the redacted portions of the contract would provide inmates with the necessary knowledge to take steps to circumvent the capabilities of the AITS, and undetected illicit, criminal and dangerous activities would proliferate within the institution placing the lives and safety of inmates, officers and others at risk. 12. The disclosure of the redacted portions of the contract would threaten public safety and the Department’s public protection activities in maintaining safe and secure correctional institutions by allowing inmates and others to access 16 information that can be used to undermine the Department’s security procedures. Based upon the foregoing evidence, the Department and GTL have demonstrated that the release of the withheld information regarding the IMS would allow inmates engaging in criminal activities to circumvent the IMS, and ultimately undermine the safety and security of the Department’s institution. As the Department and GTL have demonstrated that the release of this information would be reasonably likely to threaten the personal security of Department staff and inmates, this information is exempt from disclosure under Section 708(b)(1)(ii) of the RTKL. b. Securus contract Major Mirarchi attests, in relevant part, that portions of the Securus contract, referred to as the “Security Information” are exempt from disclosure because their release would threaten personal security and public safety.4 Specifically, Major Mirarchi attests: 7. The Contract was developed to provide the Department with an innovative, state of the art, “hosted” solution for inmate telephone service and call monitoring and recording system which will provide inmates confined to the Department’s institutions with a highly reliable, high quality service to call family and friends and give the Department the capability to perform oversight and monitoring of inmate telephone calls. 8. The Security Information provisions of the Contract define the investigative and intelligence processes and procedures for the recording and monitoring of inmate calls as well as the detection of cellular telephone usage by inmates. 9. The Security Information processes and procedures in the Contract are an integral and critical component of the Department’s efforts to perform investigations and safely and securely monitor inmate calls. 10. The Security Information provisions are part of the Department’s law enforcement functions and duties in connection with its legal responsibility for the care, custody and control of offenders committed to the Department’s custody. 11. The Security Information is confidential because it contains security-sensitive information regarding the recording and monitoring of inmate telephone calls…. 4 In its submission, Securus does not address any security concerns. proprietary nature of its information. 17 Instead, it focused on the confidential 15. Many inmates are sophisticated enough that even the disclosure of seemingly innocuous information would be used by the inmate population to the detriment of institutional security. 16. The more the inmate population knows about the Department’s telephone system and monitoring processes, the better prepared the inmates will be to use such information to cause disruptions, risking the lives of staff, other inmates, vendors, suppliers, the general public and other[s] who might be present at or near the institution. 17. Inmates could easily manipulate the Security Information contained in the Contract to circumvent the Department’s call monitoring and investigation intelligence gathering and hinder the Department’s ability to detect illicit calls and monitor the calls in the pursuit of appropriate administrative sanctions and/or criminal charges. 18. Knowledge of the contents of the Security Information provisions will allow inmates to take precautions to prevent the detection of illicit phone conversations by providing them with information to allow them to circumvent the tools used by the Department to monitor the calls. Based on the foregoing evidence, the Department has demonstrated that the Security Information contains “investigative and intelligence processes and procedures” regarding the Department’s law enforcement function, that if disclosed, would allow inmates to circumvent Department monitoring. The Department has also demonstrated that the release of this information would threaten institutional security. Based on this evidence, the Department has met its burden of proving that this information is exempt under Section 708(b)(2) of the RTKL. c. Scotlandyard contract Section 708(b)(3) of the RTKL exempts from disclosure “[a] record, the disclosure of which creates a reasonable likelihood of endangering the safety or the physical security of a building, public utility, resource, infrastructure, facility or information storage system….” 65 P.S. § 67.708(b)(3). The exemption includes “building plans or infrastructure records that expose or create vulnerability through disclosure of the location, configuration or security of critical systems….” 65 P.S. § 67.708(b)(3)(iii). In regard to the contract between the Department and Scotlandyard, the Department redacted a page referenced as a “Building Plan.” 18 Mr. Ilgenfritz, on behalf of the Department, attests that this information “was redacted in accordance with several exemptions of the RTKL, specifically, [the] building security exemption, which excludes records that create a reasonable likelihood of endangering the safety or physical security of a building, such as, the physical security of Scotlandyard’s location for video visitation.” However, conclusory affidavits or statements made under penalty of perjury are insufficient to meet an agency's burden of proof. See Scolforo, 65 A.3d at 1103. The Department has not demonstrated why the release of the Building Plan would be reasonably likely to endanger the physical security of a building.5 Therefore, it has not met its burden of proving that this record is exempt under Section 708(b)(3) of the RTKL. See 65 P.S. § 67.708(a)(1). Likewise, the Department also argues that the release of the Building Plan “would reveal proprietary information and trade secrets which Scotlandyard has spent considerable time and effort in protecting,” and “would jeopardize the Department’s interests in safely and securely delivering video visitation for inmates.” However, these conclusory statements are insufficient to meet the Department’s burden of proof, as there is no explanation of why the information is a trade secret, or why the release of the Building Plan would pose a safety risk. Therefore, the Department has not met its burden of proving that the Building Plan is exempt from disclosure. 5. The Department has not met its burden of proving that signatures are exempt from disclosure The Department also argues that various signatures are exempt from disclosure under Section 708(b)(1)(ii) because their release would threaten individuals’ personal security. However, other than conclusory affidavits merely stating that the signatures are exempt from 5 Notably, the Department’s Chief of Security, Major Mirarchi, attests to security risks regarding portions of the GTL and Securus contracts; however, Major Mirarchi does not address the Department’s claim that the release of the Building Plan also poses a security risk. 19 disclosure, the Department has not provided any competent evidence establishing that the release of the signatures would threaten individuals’ personal security. Cf. Governor’s Office of Admin. v. Purcell, 35 A.3d 811 (Pa. Commw. Ct. 2011). As such, the Department has not met its burden of proving that this information is exempt from disclosure. 6. The Department has proven that records contain personal identification information Finally, the Department argues that it redacted six pages of resumes that were attached to the JPay contract because they contained the personal or cellular telephone numbers of JPay personnel. Section 708(b)(6) of the RTKL exempts from disclosure “personal identification information,” including “home, cellular or personal telephone numbers.” 67.708(b)(6)(i)(A). See 65 P.S. § Accordingly, the Department has met its burden of proving that the information redacted from the resumes is exempt from disclosure under Section 708(b)(6) of the RTKL. See 65 P.S. § 67.708(a)(1). CONCLUSION For the foregoing reasons, the Requester’s appeal is granted in part and denied in part and, subject to the redaction of tax information, trade secrets and personal identification information, the Department is required to provide the Requester with copies of the records within thirty days. This Final Determination is binding on all parties. Within thirty days of the mailing date of this Final Determination, any party may appeal to the Commonwealth Court. 65 P.S. § 67.1301(a). All parties must be served with notice of the appeal. The OOR also shall be served notice and have an opportunity to respond according to court rules as per Section 1303 of the RTKL. This Final Determination shall be placed on the OOR website at: http://openrecords.state.pa.us. 20 FINAL DETERMINATION ISSUED AND MAILED: August 12, 2015 ______________________ APPEALS OFFICER KYLE APPLEGATE, ESQ. Sent to: Paul Wright (via e-mail only); Valerie Janosik-Nehilla, Esq. (via e-mail only); Andrew Filkosky (via e-mail only); Karl Myers, Esq. (via e-mail only); Grainger Bowman, Esq. (via e-mail only) 21 Attachment 6 From: To: Cc: Subject: Date: Attachments: Janosik-Nehilla, Valerie Lance Weber Carrie Wilkinson; Paul Wright; Filkosky, Andrew FW: Follow-up on RTKL Tracking #524-15/Pennsylvania Office of Open Records Docket No.: AP 2015-0909 Tuesday, March 15, 2016 3:16:46 PM 031516 Ltr to PA DOC re RTKL Docs.pdf 201603151440.pdf Dear Mr. Weber, I am in receipt of your letter dated March 15, 2016 addressed to Andrew Filkosky. As you are most likely aware, Global Tel*Link has filed an appeal to the Office of Open Records Final Determination for AP 2015-0909. Please see the attached Docket Sheet for your reference. Global Tel*Link’s Appeal has stayed the release of the records granted in OOR’s Final Determination for AP 20150909. Until that Appeal is resolved, the Department of Corrections will not be releasing any records granted in AP 2015-0909. Sincerely, Valerie Janosik-Nehilla | Assistant Counsel Department of Corrections | Office of Chief Counsel 1920 Technology Parkway Mechanicsburg, PA 17050 Phone: 717.728.7746| Fax: 717.728.0312 www.cor.pa.gov From: Carrie Wilkinson [mailto:cwilkinson@humanrightsdefensecenter.org] Sent: Tuesday, March 15, 2016 2:30 PM To: CR, DOC Right to Know <RA-docrighttoknow@pa.gov> Cc: Paul Wright <pwright@prisonlegalnews.org>; Lance Weber <lweber@humanrightsdefensecenter.org> Subject: Follow-up on RTKL Tracking #524-15/Pennsylvania Office of Open Records Docket No.: AP 2015-0909 Attn: Andrew Filkosky Please see attached correspondence from Lance T. Weber, General Counsel, Human Rights Defense Center. Thank you. Carrie Wilkinson Sr. Litigation Paralegal Human Rights Defense Center 801 Second Ave., Suite 800 Seattle, WA 98104 Office: 206.489.5604 Cell: 206.604.6145 www.humanrightsdefensecenter.org This communication may be confidential, privileged and/or attorney work product. If you received it in error, please notify me and delete it from your system. Any unauthorized use is prohibited and may be unlawful. Attachment 7 Received 12/29/2015 Commonwealth Court of Pennsylvania Filed 12/29/2015 Commonwealth Court of Pennsylvania 1678 CD 2015 ____________________________________________________ IN THE COMMONWEALTH COURT OF PENNSYLVANIA ______________________________________________________ No. 1678 CD 2015 GLOBAL TEL*LINK CORPORATION, Petitioner, v. PAUL WRIGHT AND PRISON LEGAL NEWS, Respondents. ________________________________________________________ BRIEF OF PETITIONER, GLOBAL TEL*LINK CORPORATION _________________________________________________________ On Petition for Review of the Final Determination of the Office of Open Records, at Docket No. 2015-0909, issued and mailed August 12, 2015 _________________________________________________________ Karl S. Myers Pa. Id. No. 90307 STRADLEY RONON STEVENS & YOUNG, LLP 2600 One Commerce Square Philadelphia, PA 19103 (215) 564-8193 (215) 564-8120 (facsimile) Attorneys for petitioner, Global Tel*Link Corporation TABLE OF CONTENTS I. STATEMENT OF JURISDICTION .................................................1 II. DETERMINATION IN QUESTION ................................................1 III. STATEMENT OF THE STANDARD AND SCOPE OF REVIEW...............................................................2 IV. STATEMENT OF THE QUESTIONS INVOLVED.........................3 V. STATEMENT OF THE CASE..........................................................4 A. The Right-to-Know Request ....................................................4 B. The Department’s Response....................................................5 C. Requester’s Appeal to the OOR...............................................7 D. The OOR’s Final Determination .............................................9 VI. SUMMARY OF ARGUMENT ........................................................10 VII. ARGUMENT...................................................................................11 A. B. The GTL Financial Information constitutes “financial information of a bidder or offeror” exempt from disclosure under the Law. ......................................................................11 1. GTL demonstrated the exemption applies. .................12 2. OOR invoked the “financial records” provision sua sponte to deny GTL the protection to which it is entitled..........................................................................14 a. The OOR’s decision conflicts with its own prior decisions. .............................................................17 b. This Court already has rejected the OOR’s approach. .............................................................18 c. The OOR’s reading of the Law is absurd and unreasonable. ......................................................19 The GTL Financial Information constitutes “confidential proprietary information” exempt from disclosure under the Law. .......................................................................................23 VIII.CONCLUSION ...............................................................................26 TABLE OF AUTHORITIES CASES Bowling v. Office of Open Records, 75 A.3d 453 (Pa. 2013) ...................................................................... 2-3 Brown v. Dep’t of State, 123 A.3d 801 (Pa. Commw. 2015) .........................................................3 Colgate-Palmolive Co. v. Pa. Ins. Dep’t, No. 2013-1631, 2014 WL 930154 (OOR Mar. 7, 2014) .......................24 Giurintano v. Dep’t of Gen. Svcs., 20 A.3d 613 (Pa. Commw. 2011) .........................................................24 Grant v. City of Allentown, No. 2013-0459, 2013 WL 1737033 (OOR Apr. 18, 2013) ....................17 Hodges v. Pennsylvania Department of Corrections, No. 2015-0241, 2015 WL 1431794 (OOR Mar. 23, 2015) ..............17-18 Kane v. Dep’t of Pub. Welfare, No. 2009-1104, 2010 WL 2128711 (OOR Feb. 1, 2010) ......................21 Larson v. Cheltenham Twp. Sch. Dist., No. 2014-0256, 2014 WL 1284527 (OOR Mar. 13, 2014) ...................18 Maulsby v. Pennsylvania Department of Corrections, No. 2014-1480 (OOR Nov. 25, 2014) ...................................................18 Nixon v. Pa. Ins. Dep’t, No. 2013-0729, 2013 WL 2949126 (OOR June 11, 2013) ...................24 Scott v. Delaware Valley Reg’l Planning Comm’n, 56 A.3d 40 (Pa. Commw. 2012) .............................................................3 Smith v. Spring Cove Sch. Dist., No. 2011-0805, 2011 WL 3097860 (OOR July 20, 2011) ..............12, 17 West Chester University v. Schackner, 124 A.3d 382 (Pa. Commw. 2015) ..................................................18-19 Westinghouse Elec. Co. v. Murphy, Inc., 228 A.2d 656 (Pa. 1967) ......................................................................20 STATUTES 1 Pa.C.S. §1921 ........................................................................................22 1 Pa.C.S. §1922 ........................................................................................19 42 Pa.C.S. §763 ..........................................................................................1 42 Pa.C.S. §5105 ........................................................................................1 62 P.S. §106 (superseded)........................................................................23 62 Pa.C.S. §103 ........................................................................................20 62 Pa.C.S. §513 ..................................................................................12, 20 The Pennsylvania Right-to-Know Law, 65 P.S. §§67.101 to 67.3104 ........................................................ passim CONSTITUTIONAL PROVISIONS Pa. Const., art. 5, § 9 .................................................................................1 RULES Pa.R.A.P. 1501 ...........................................................................................1 OTHER AUTHORITIES Department of General Services, Procurement Handbook........................................................... 12, 19, 20 - ii - Petitioner, Global Tel*Link Corporation (“GTL”), hereby submits this brief in support of its petition for review in this matter. For the reasons set forth below, GTL submits that this Court should reverse the August 12, 2015 Final Determination of the Office of Open Records as to its determination respecting the GTL Financial Information (defined below), and further order that no further action must be taken by the Pennsylvania Department of Corrections with respect to the GTL Financial Information. I. STATEMENT OF JURISDICTION This Court has jurisdiction over this matter as a petition for review within its appellate jurisdiction, pursuant to: Article 5, Section 9 of the Constitution of Pennsylvania; sections 763 and 5105 of the Judicial Code (42 Pa.C.S. §§763 & 5105); section 1301 of the Right-toKnow Law (65 P.S. §67.1301); and Pennsylvania Rule of Appellate Procedure 1501, et seq. II. DETERMINATION IN QUESTION The determination in question is the Final Determination of the Office of Open Records issued on August 12, 2015, at OOR Docket No. 2015-0909, as to its determination respecting the GTL Financial Information (defined below). The Final Determination concludes: For the foregoing reasons, the Requester’s appeal is granted in part and denied in part and, subject to the redaction of tax information, trade secrets and personal identification information, the Department is required to provide the Requester with copies of the records within thirty days…. (Exhibit A at 20; R. 187a.) This decision is unreported. A copy of the Final Determination is attached hereto as Exhibit A, and is included in the Reproduced Record at R. 168a-188a. III. STATEMENT OF THE STANDARD AND SCOPE OF REVIEW The standard and scope of review applicable in Right-toKnow Law proceedings reflect that this Court owes absolutely no deference to the Office of Open Records. The Supreme Court definitively held in Bowling that this Court’s standard of review under the Law is de novo and its scope of review is plenary. See Bowling v. Office of Open Records, 75 A.3d 453, 477 (Pa. 2013) (“We hold that the Commonwealth Court correctly held that its standard of review is de novo and that its scope of review is broad or plenary when it hears appeals from determinations made by appeals officers under the -2- RTKL.”). This Court therefore is not bound by any of the findings of the OOR, and instead may independently review the decision below and substitute its own findings for those of the OOR. See Brown v. Dep’t of State, 123 A.3d 801, 804 n.6 (Pa. Commw. 2015); Scott v. Delaware Valley Reg’l Planning Comm’n, 56 A.3d 40, 43 n.3 (Pa. Commw. 2012). Indeed, a “de novo standard of review permits the court to determine the case anew, including matters pertaining to testimony and other evidence.” Bowling, 75 A.3d at 466 n.14 (emphasis in original). IV. STATEMENT OF THE QUESTIONS INVOLVED 1. Should this Court reverse the Office of Open Records for ordering disclosure of the GTL Financial Information, which was submitted during Commonwealth procurements to demonstrate GTL’s economic capabilities, given section 708(b)(26) of the Right-to-Know Law specifically exempts those documents from disclosure? (Suggested answer: Yes.) 2. Should this Court reverse the OOR for deciding, sua sponte, that the GTL Financial Information constitutes “contracts” and hence “financial records” not qualified for the Law’s exemptions pursuant to sections 102 and 708(c) of the Law? -3- (Suggested answer: Yes.) 3. Should this Court reverse the OOR for ordering disclosure of the GTL Financial Information, given GTL presented unrebutted evidence that such constitutes “confidential proprietary information” exempt under section 708(b)(11) of the Law? (Suggested answer: Yes.) V. STATEMENT OF THE CASE A. The Right-to-Know Request This case arises under the Right-to-Know Law, 65 P.S. §§67.101 to 67.3104. It began when Paul Wright and Prison Legal News1 (collectively, “Requester”) submitted a request to the Department of Corrections on March 27, 2015 (the “Request”). (R. 17a-20a.) The Request sought twenty-four different categories of documents pertaining to the Department’s contracts with outside contractors for the following services: (a) inmate telephone services; (b) video visitation; (c) electronic mail or messaging; (d) electronic funds transfers; (e) 1 Mr. Wright is Editor of Prison Legal News, a publication of the Human Rights Defense Center, where he serves as Executive Director. The Center is a Floridabased group that advocates on behalf of those incarcerated in the United States. -4- money transfer services; (f) commissary or canteen services; (g) prisoner package services; and (h) book ordering services. (R. 17a-19a.) B. The Department’s Response The Department granted the Request in part and denied it in part on May 12, 2015, by way of a detailed, five-page response. (R. 22a-26a.) In its response, the Department granted Requester access to the vast majority of the materials he sought. Requester acknowledges that the Department produced 3,195 pages to him. (R. 9a.) Among the many documents produced to Requester by the Department were two that relate to GTL: (1) the inmate telephone services contract between GTL and the Department (contract no. 4600012527); and (2) the kiosk services contract between GTL and the Department (contract no. 4400013765). With respect to the inmate telephone services contract, the Department produced 1,146 pages, constituting the entire document minus a few redactions. The contract, as provided to Requester, depicts the telephone rates charged to the inmates, as well as the terms of -5- GTL’s compensation and the commissions to be paid by GTL to the Department.2 (R. 22a.) This document also discloses to Requester the scope of services GTL agreed to provide, and the specifics of how GTL would provide those services.3 Included among the few redactions from this contract were five pages showing GTL’s4 internal financial information. (R. 38a) (Redaction No. 45). There is no dispute that GTL submitted that information to the Department in confidence, at the Department’s request, to demonstrate it is fiscally able to carry out the inmate telephone services contract. As to the 608-page kiosk contract, the Department produced this entire document to Requester, once again subject to a few redactions. Like the telephone contract, the version of the kiosk contract disclosed to Requester also shows the rates charged to the 2 Both the inmate telephone and kiosk contracts are commission-based contracts, meaning the Department does not pay any public funds under those arrangements. To the contrary, those contracts actually generate revenue for the Commonwealth, because GTL pays the Department a share of the revenue. 3 This contract, as produced to Requester, is publicly available on the Department of Treasury website at the following location: http://contracts.patreasury.gov/ View2.aspx?ContractID=125566 4 Although the financial information in question related to GTL’s predecessor in interest, for ease of reference it will be referenced as GTL’s own. -6- inmates, as well as the terms of GTL’s compensation and the commissions to be issued by GTL to the Department. (R. 23a.) This document also discloses to Requester the scope of services GTL agreed to provide, and the specifics of how GTL would provide those services.5 Of the 608 pages produced, twenty-three were redacted to shield GTL’s confidential financial information. (R. 37a) (Redaction No. 29). There is no dispute that GTL submitted this information to the Department in confidence, at the Department’s request, to demonstrate its fiscal capability to deliver the services required under the kiosk contract. The above-referenced confidential financial information redacted from the inmate telephone services contract and kiosk contract is referenced in this brief as the “GTL Financial Information.” C. Requester’s Appeal to the OOR Apparently dissatisfied with the Department’s response, Requester took an appeal to the Office of Open Records on June 3, 2015. (R. 9a-15a.) In relevant part, Requester complained that the 5 This contract, as produced to Requester, is publicly available on the Department of Treasury website at the following location: http://contracts.patreasury.gov/ View2.aspx?ContractID=285767 -7- Department had been insufficiently specific in asserting that the exemptions found in sections 708(b)(26) (pertaining to financial information of a bidder or offeror) and 708(b)(11) (pertaining to confidential proprietary information) applied to preclude disclosure. (R. 12a-13a, 13a.) In the Department’s merits submission, filed on June 19, 2015, it supplied the specifics underlying its invocation of these two exemptions, as well as the other exemptions it had raised. (R. 56a117a.) The Department’s 62-page submission, which included eight different witness declarations, explains in detail why the GTL Financial Information is exempt under sections 708(b)(26) and (11). (R. 65a-66a, 71a, 92a, 112a.) GTL, for its part, also made a timely merits submission on June 19, 2015, after it was notified of Requester’s appeal to the OOR. (R. 122a-134a.) GTL explained in even greater detail than the Department why the section 708(b)(26) and (11) exemptions applied, and supplied factual support by way of an affirmation by a GTL Vice President. (R. 126a-127a, 129a, 131a-134a.) -8- Requester did not make any submission to the OOR in response to either the Department or GTL. Requester therefore supplied no legal argument or facts to counter these submissions. D. The OOR’s Final Determination The OOR issued the Final Determination on August 12, 2015. (Exhibit A; R. 168a-188a.) There, the OOR granted the appeal in part and denied it in part, and directed the Department to take further action. In pertinent part, the OOR held that the GTL Financial Information constitutes “contracts” and hence “financial records” as defined by section 102 of the Law. According to the OOR, by operation of section 708(c), this meant the exemptions found in sections 708(b)(26) and (11) were totally inapplicable. (Exhibit A at 5; R. 172a.) Requester never made this “contracts” and “financial records” argument; OOR conjured it on its own. And because this rationale first appeared in the OOR’s decision, neither the Department nor GTL were ever given an opportunity to address it below. GTL timely petitioned this Court for review on September 11, 2015, and now timely files this merits brief. Requester has not -9- cross-appealed, and therefore the conclusions reached in the Final Determination other than those challenged by GTL are now final. VI. SUMMARY OF ARGUMENT This Court should reverse the OOR’s decision as to disclosure of the GTL Financial Information. Those materials are plainly and indisputably within the ambit of the section 708(b)(26) exemption of the Right-to-Know Law. But the OOR effectively gutted the protection afforded by that exemption (and several others, including section 708(b)(11)) by deciding, sua sponte, that contractor financials like GTL’s are “contracts” that are totally ineligible for exemption. The OOR’s decision, if upheld by this Court, threatens multitudes of government contractors with automatic disclosure of their confidential financials, proprietary information, and trade secrets. The determination below also absurdly construed the Law by undermining the requirement that government contractors submit their financial information to procuring agencies, and simultaneously failed to honor the purpose of the Law’s “financial records” language. Accordingly, for these reasons, as explained in detail below, this Court should reverse the OOR as to the GTL Financial Information and order that the - 10 - Department need not take any further action with respect to the GTL Financial Information. VII. ARGUMENT A. The GTL Financial Information constitutes “financial information of a bidder or offeror” exempt from disclosure under the Law. This Court should hold that the GTL Financial Information is exempt from disclosure under section 708(b)(26) of the Right-to-Know Law. That statute mandates the following items are exempt from access by a requester: A proposal pertaining to agency procurement or disposal of supplies, services or construction prior to the award of the contract or prior to the opening and rejection of all bids; financial information of a bidder or offeror requested in an invitation for bid or request for proposals to demonstrate the bidder’s or offeror’s economic capability; or the identity of members, notes and other records of agency proposal evaluation committees established under 62 Pa.C.S. § 513 (relating to competitive sealed proposals). 65 P.S. §67.708(b)(26) (emphasis added). The General Assembly’s language is plain and unmistakable. It is designed to ensure that when a bidder or offeror discloses its confidential financial information to an agency in order to show it is - 11 - fiscally able to carry out a contract, it can do so with complete confidence that the financial disclosures will remain under wraps.6 The OOR’s own decisions acknowledge as much. See, e.g., Smith v. Spring Cove Sch. Dist., No. 2011-0805, 2011 WL 3097860, *4 (OOR July 20, 2011) (noting that “the General Assembly also made clear that it intended to provide protection to certain financial information contained in proposals” and “[i]t would be a direct contradiction of legislative intent for the OOR to order the release of an expressly exempt record”). 1. GTL demonstrated the exemption applies. Here, both the Department and GTL – the parties to the inmate telephone and kiosk contracts at issue – conclusively proved that the GTL Financial Information is entitled to the protection section 6 This provision is consistent with other legislative pronouncements that require prospective contractors’ proposals to be kept in confidence. See, e.g., 62 Pa.C.S. §513(f) (Procurement Code requirement of confidentiality of offerors’ submissions); 65 P.S. §67.102 (defining “public record” to exclude records exempt pursuant to other laws); see also Department of General Services, Procurement Handbook, Part I, Chapter 50 (Public Access to Procurement Information), at ¶C(3)(c) (“Any financial information that a bidder or offeror is required to provide in its bid, proposal, or prequalification document to demonstrate the bidder’s or offeror’s capability to fully perform the contract requirements is exempt from disclosure, and should not be released to the public.”). - 12 - 708(b)(26) affords. Both counterparties to those contracts provided evidence and supporting argument demonstrating that the GTL Financial Information is, in fact, “financial information of [GTL] requested in an invitation for bid or request for proposals to demonstrate [GTL’s] economic capability.”7 65 P.S. §67.708(b)(26); Id., §67.708(a) (specifying preponderance of evidence as burden of proof for exemptions). There is no debate about this, as the Department’s and GTL’s submissions never have been rebutted in any fashion by Requester. Nor could they be, as the GTL Financial Information is indisputably of the type that squarely falls within this statutory exemption. Accordingly, GTL was, and is, entitled to the protection provided by the section 708(b)(26) exemption. 7 See, e.g., (R. 65a-66a, 71a) (Department’s argument); (R. 92a at ¶14) (Affirmation by Department witness that “[t]he above[-]listed financial information was redacted pursuant to section 708(b)(26) of the RTKL because it is GTL’[s] financial information … submitted in response to the request for proposals to demonstrate GTL’[s] economic capability to perform services for the Department”); (R. 112a) (same); (R. 126a-127a) (GTL’s argument); (R. 132a at ¶¶6-12 (Affirmation by GTL witness that the redacted information “covers the financial information that GTL provided to the Department, at the Department’s request, in connection with the request for proposal process … in order to demonstrate GTL’s economic capability”). - 13 - The importance of this statutory exemption to government contractors like GTL cannot be overstated. GTL, a non-public company, operates in an intensely competitive industry. It has an absolute need to protect its internal financial information from damaging disclosures. GTL’s competitors always are looking for ways to obtain GTL’s internal and sensitive information for creative exploitation in an effort to win business away from GTL or undermine its current contracts.8 Because of that risk, GTL always is careful to protect its financials, including by marking all such documents “CONFIDENTIAL” and maintaining them in the highest degree of confidence, both internally and externally. (R. 132a-133a at ¶¶8-12, 19-24.) 2. OOR invoked the “financial records” provision sua sponte to deny GTL the protection to which it is entitled. Notwithstanding the plain import of section 708(b)(26)’s statutory exemption and its underlying purpose, as well as the 8 The redacted information here includes audited financial statements for GTL over several years, including information about GTL’s assets, income, cash on hand, receivables, expenses, licenses, taxes, property, goodwill, and other assets and liabilities. (R. 132a ¶9.) It is not difficult to see how a competitor could conjure a (baseless) argument that GTL lacks financial fitness, such as by “spinning” GTL’s fiscal picture in comparison to the competitor’s own. - 14 - unrebutted facts and legal arguments presented by the Department and GTL, the OOR nevertheless held the GTL Financial Information must be given to Requester. This conclusion is based on a surprising rationale that was purely of OOR’s own creation, given Requester never made this argument to the OOR. The OOR – dropping any pretense of serving as neutral arbiter, and instead assuming the mantle of Requester’s advocate – claimed that GTL’s financials, once they were later attached to the inmate telephone services and kiosk services contracts, suddenly became “contracts” and, consequently, the Commonwealth’s “financial records” under section 102 of the Law.9 After transforming GTL’s 9 Section 102 of the Law defines a “financial record” thusly: “Financial record.” Any of the following: (1) Any account, voucher or contract dealing with: (i) the receipt or disbursement of funds by an agency; or (ii) an agency’s acquisition, use or disposal of services, supplies, materials, equipment or property. (2) The salary or other payments or expenses paid to an officer or employee of an agency, including the name and title of the officer or employee. (footnote continued on next page) - 15 - internal company financials into the government’s own “financial records,” the OOR then held that section 708(c)10 defeated any attempt to apply any of the claimed exemptions. (Appendix A at 5; R. 172a.) The OOR thus mandated that GTL’s internal financials were not entitled to coverage under any exemption of the Law. The OOR did not cite a single case decided by any tribunal supporting this construction of the Law. The net result of OOR’s unprecedented and unsupported reading is that records unquestionably constituting contractor financials that are plainly covered by the section 708(b)(26) exemption must be disclosed anyway. (footnote continued from previous page) (3) A financial audit report. The term does not include work papers underlying an audit. See 65 P.S. §67.102. 10 Section 708(c) provides: Financial records. — The exceptions set forth in subsection (b) shall not apply to financial records, except that an agency may redact that portion of a financial record protected under subsection (b)(1), (2), (3), (4), (5), (6), (16) or (17). An agency shall not disclose the identity of an individual performing an undercover or covert law enforcement activity. See 65 P.S. §67.708(c). - 16 - a. The OOR’s decision conflicts with its own prior decisions. GTL is unaware of any prior decision by this Court, the Supreme Court, or even the OOR reaching that conclusion. To the contrary, the OOR’s own prior decisions conflict with the decision it reached here. In particular, in Hodges v. Pennsylvania Department of Corrections, No. 2015-0241, 2015 WL 1431794 (OOR Mar. 23, 2015), the OOR was faced with a situation identical to this one, but reached the exact opposite result. There, as here, the requester sought from the Department of Corrections materials that a contractor had submitted during a procurement process. Id. at *1. The materials in question included the contractor’s confidential financial information. Those financials were later appended to the contract between the Department and the contractor – the exact scenario presented here. Id. at *5. But in Hodges, unlike this case, the OOR held the contractor’s financials were exempt under section 708(b)(26).11 Id. 11 There are numerous OOR cases with similar facts, and all of them have been decided the same way as Hodges. See, e.g., Smith v. Spring Cove Sch. Dist., No. 2011-0805, 2011 WL 3097860, *3-*4 (OOR July 20, 2011) (holding contractor’s financials submitted during procurement process exempt under section 708(b)(26), even though agency never asserted this exemption); Grant v. City of (footnote continued on next page) - 17 - b. This Court already has rejected the OOR’s approach. More importantly, the OOR’s decision in this case is inconsistent with this Court’s reading of section 708(c). In this Court’s recent decision in West Chester University v. Schackner, 124 A.3d 382 (Pa. Commw. 2015), the requester sought a copy of a contract between an agency (West Chester University) and a contractor (a lobbyist hired by the University). Id. at 385. The OOR held, as it did here, that no exemptions could be claimed for any portion of the contract because section 708(c) mandated that the entirety of the contract had to be disclosed. Id. at 387. This Court, however, disagreed with the OOR that the information contained within the contract had to be disclosed “just because it is part of the contract.”12 Id. at 392. (footnote continued from previous page) Allentown, No. 2013-0459, 2013 WL 1737033, *5-6 (OOR Apr. 18, 2013) (holding contractor’s financials submitted during procurement process exempt under section 708(b)(26)); Larson v. Cheltenham Twp. Sch. Dist., No. 2014-0256, 2014 WL 1284527 (OOR Mar. 13, 2014) (same). The Hodges decision also echoes a prior decision, Maulsby v. Pennsylvania Department of Corrections, No. 20141480 (OOR Nov. 25, 2014), where the OOR reached the same decision based on a request for the same contract. Id. at 8-9. To GTL’s knowledge, neither this Court nor the Supreme Court has been asked to address a case like this one. 12 The Court’s remaining rationale in Schackner – that the contractor had failed to meet its burden to prove the exemption at issue applied – is inapplicable here. - 18 - c. The OOR’s reading of the Law is absurd and unreasonable. This Court had good reason in Schackner not to endorse the OOR’s unprecedented reading of section 708(c), as doing so will lead to the absurd result that the section 708(b)(26) exemption, and a number of others, will be totally eviscerated in almost every procurement scenario. See 1 Pa.C.S. §1922 (in ascertaining legislative intent, it must be presumed “[t]hat the General Assembly does not intend a result that is absurd … or unreasonable”). This is because documents showing financial information, trade secrets, confidential proprietary information, and other kinds of exempt information are commonly attached to agency contracts.13 If the OOR’s reading of section 708(c) is sustained here, then every document with sensitive contractor information that happens to be attached to a contract with an agency automatically will be subject to disclosure. This outcome could have 13 The Procurement Handbook contemplates that attachments to an agency contract will include the contractor’s proposal (which itself will include the contractor’s financials) and the agency’s request for proposals. See Department of General Services, Procurement Handbook, Part I, Chapter 43 (Contract Provisions) at ¶B (suggesting order of preference of contract, proposal, and then RFP in the event of a conflict between documents attached to the contract). - 19 - catastrophic consequences for almost every contractor doing business with the Commonwealth.14 The OOR’s reading of the Law also undermines the purpose of requiring government contractors to submit company financials. Those documents are required in order to satisfy the agency that the contractor has the financial strength to carry out the contract.15 The financials are attached to the contract so the agency can rely on and enforce the contractor’s representations. Cf. Westinghouse Elec. Co. v. Murphy, Inc., 228 A.2d 656 (Pa. 1967) (attachment referenced in 14 One can select contracts almost at random to find examples where contractor financials have been attached to contracts. See, e.g., Department of Labor and Industry Contract No. 4300450013 (available at: http://contracts.patreasury.gov/ View2.aspx?ContractID=306500) (contractor’s submission attached to contract, but redacted to remove company financials and other proprietary information). These contractors, like GTL, obviously entered into contracts with the Commonwealth before the OOR’s new section 708(c) rubric was announced, and many even entered into those contracts prior to enactment of the new Right-toKnow Law. All of these contractors will be blindsided with a potential retroactive mandate of disclosure of all attachments to their contracts – that is, if the OOR’s decision here is upheld. 15 See 62 Pa.C.S. §513 (providing for selection of “responsible offeror” for contracting as a result of competitive sealed bidding process); 62 Pa.C.S. §103 (defining “responsible offeror” as an offeror “that possesses the capability to fully perform the contract requirements in all respects”); Department of General Services, Procurement Handbook, Part I, Chapter 6 (Methods of Awarding Contracts) at ¶B(10)(e)(b) (“the issuing office must determine that the submitted and gathered financial and other information of the offeror demonstrates that the offeror possesses the financial and technical capability, experience and qualifications to assure good faith performance of the contract”). - 20 - contract held to be enforceable as between the contracting parties). Attaching a contractor’s financial representations to the contract therefore is an easy and effective way for the agency to ensure the contractor lives up to its promise of fiscal fitness. But if the OOR’s reading of the Law is sustained, then contractors inevitably will begin to insist that their financial information, trade secrets, and other information must not be attached to the contracts. This will make it harder for the agencies to ensure compliance. The General Assembly could not have intended the “financial records” provision in section 708(c) the Law to be read in a way that limits the ability of agencies to ensure contractor fitness.16 Indeed, the purpose behind the “financial records” language in sections 102 and 708(c) has nothing at all to do with disclosure of confidential contractor information. Rather, the obvious purpose of those companion provisions is to ensure that the public has access to 16 The OOR’s decision, if sustained, also would create the inconsistency that a contractor’s financials would be disclosed, but the agency’s materials reflecting its evaluation of those very financials would not be disclosed. See, e.g., Kane v. Dep’t of Pub. Welfare, No. 2009-1104, 2010 WL 2128711, *5 (OOR Feb. 1, 2010) (holding evaluation materials relating to financial capabilities of contractor exempt). - 21 - documents showing how public money is spent. But the public can learn absolutely nothing about how public money is spent by reading a private contractor’s confidential financial statements. The OOR’s reading of the Law therefore is nothing short of absurd and unreasonable. As such, it must be rejected. While the OOR claimed, without citing any support, that the attachments to the contracts here “are part and parcel of the contracts,” a more appropriate reading of the undefined term “contract” in the section 102 definition of “financial records” is more narrow. In this context, a suitable reading of “contract” is that it covers only the actual terms and conditions found in the contract documents themselves – not the ancillary appendices and attachments that are prepared prior to and separately from the contract, and serve mainly as cross-references for statements contained in the contract documents.17 17 This reading is consistent with the prior law on this subject. See 1 Pa.C.S. §1921(c)(5) (prior law to be considered when interpreting statutes). The section 708(b)(26) exemption previously was found in section 106 of the Procurement Code, 62 P.S. §106 (superseded), which was deleted by section 3102(2)(iii) of Act 3 of 1998 – the enactment that brought about the new Right-to-Know Law (and the 708(b)(26) exemption). Section 106 of the Procurement Code, in language that was later parroted in section 708(b)(26), exempted financial information of a bidder or offeror, but provided no means to defeat that exemption if the financial information was attached to a contract. - 22 - Applying this reading here, there is no question that the GTL Financial Information falls outside the concept of a “contract” in this context. As such, GTL is entitled to claim that material as exempt under section 708(b)(26) – just as the General Assembly intended when it enacted that statutory provision. Accordingly, the Court should reverse the OOR as to the GTL Financial Information, and should further order that the Department need not take any further action with respect to the GTL Financial Information. B. The GTL Financial Information constitutes “confidential proprietary information” exempt from disclosure under the Law. Similarly, and in addition, this Court can and should hold that the exemption for “confidential proprietary information” found in section 708(b)(11) of the Law also applies – and is not automatically defeated simply because the GTL Financial Information was attached to the inmate telephone and kiosk contracts. Under the Right-to-Know Law, a record that “constitutes or reveals” “confidential proprietary information” is exempt from disclosure. 65 P.S. §67.708(b)(11). “Confidential proprietary information” is defined by the Law as: - 23 - 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 A document therefore is exempt from disclosure under this provision if it is shown, by a preponderance of the evidence, that the two elements of (1) confidentiality and (2) competitive harm are present. Here, as discussed above in section VII.A.1, the Department and GTL submitted unrebutted evidence demonstrating these two elements in the form of witness affirmations. (See, e.g., R. 131a-132a at ¶¶8, 10-12, 19-23.) Compare Giurintano v. Dep’t of Gen. Svcs., 20 A.3d 613, 615-17 (Pa. Commw. 2011) (holding “confidential proprietary information” exemption satisfied based on witness affirmation); Colgate-Palmolive Co. v. Pa. Ins. Dep’t, No. 2013-1631, 2014 WL 930154 (OOR Mar. 7, 2014) (holding financial projections and forecasts exempt under this exemption based on submitted affirmations); Nixon v. Pa. Ins. Dep’t, No. 2013-0729, 2013 WL 2949126 (OOR June 11, 2013) (holding report containing sensitive private company information - 24 - exempt under this exemption). Accordingly, in addition to the section 708(b)(26) exemption, GTL also is entitled to the protection of the section 708(b)(11) exemption for “confidential proprietary information.” As such, the OOR should be reversed for ordering disclosure of the GTL Financial Information. - 25 - VIII. CONCLUSION For the foregoing reasons, petitioner, Global Tel*Link Corporation, respectfully requests that this Honorable Court reverse the August 12, 2015 Final Determination of the Office of Open Records as to its determination respecting the GTL Financial Information, and further order that no further action must be taken by the Pennsylvania Department of Corrections with respect to the GTL Financial Information. Respectfully submitted, Dated: December 29, 2015 /s/ Karl S. Myers Karl S. Myers Pa. Id. No. 90307 STRADLEY RONON STEVENS & YOUNG, LLP 2600 One Commerce Square Philadelphia, PA 19103 (215) 564-8193 (215) 564-8120 (facsimile) Attorneys for petitioner, Global Tel*Link Corporation - 26 - CERTIFICATE OF COMPLIANCE I, Karl S. Myers, certify that this brief complies with the length limitation of Pa.R.A.P. 2135 because this brief is less than 30 pages and contains 4,882 words, excluding the parts of the brief exempted by Pa.R.A.P. 2135. /s/ Karl S. Myers Karl S. Myers PROOF OF SERVICE I hereby certify that I am this day serving the foregoing via the Court’s electronic filing system upon the person indicated below: Arleigh P. Helfer, III, Esquire Schnader Harrison Segal & Lewis LLP 1600 Market Street, Suite 3600 Philadelphia, PA 19103 Counsel for Respondents Dated: December 29, 2015 /s/ Karl S. Myers Karl S. Myers # 2693745 A pennsylvania OFFICE OF OPEN RECORDS FINAL DETERMINATION IN THE MATTER OF PAUL WRIGHT AND AND PRISON LEGAL NEWS, Requester v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS, Respondent and GLOBAL TEL*LINK TEL *LINK CORPORATION AND SECURUS TECHNOLOGIES, TECHNOLOGIES, INC., Direct Interest Participants : : : : : : :: : : : : : : : : : : Docket No.: 2015 -0909 No.: AP 2015-0909 INTRODUCTION Paul Wright, "Requester"), submitted a Wright, on behalf of Prison Legal News (collectively, the “Requester”), request ("Department") pursuant to request (“Request”) ( "Request ") to to the Pennsylvania Department of Corrections (“Department”) the Right-to-Know Right -to -Know Law (“RTKL”), ("RTKL "), 65 P.S. §§ §§ 67.101 67.101 et seq., seeking contracts between the Department and various various service providers. providers. The Department partially denied the Request, Request, arguing, arguing, among other reasons, that the release of certain information would threaten public Records (“OOR”). reasons set safety. The Requester appealed to to the the Office For the Office of Open Open Records ( "OOR"). For the reasons set forth in this Final Determination, the appeal is granted in part and denied in part and the Department is required to take further action as directed. directed. 11 FACTUAL BACKGROUND On March 27, 2015, the Request was filed, seeking contracts between the Department and various service providers, including those providing telephone services, video visitation services, electronic messaging services, money transfer services, commissary services, and book ordering services to inmates. The Request also sought various financial records. On March 31, 2015, the Department invoked a thirty-day extension of time to respond to the Requests pursuant to 65 P.S. § 67.902. On April 20, 2015, the Requester granted the Department time until May 20, 2015 to respond to the Request. See 65 P.S. § 67.902(b)(2). On May 12, 2015, the Department partially denied the Request, providing redacted copies of records. The Department argued, among other reasons, that these redactions were necessary because the release of certain information would threaten personal security and public safety, 65 P.S. § 67.708(b)(1)(ii)-(2), or constitutes the financial information of a bidder, 65 P.S. § 67.708(b)(26), contains communications between an agency and its insurance carrier, 65 P.S. § 67.708(b)(27), contains personal identification information, 65 P.S. § 67.708(b)(6), or contains confidential proprietary information or trade secrets, 65 P.S. § 67.708(b)(11). The Department also argued that certain records do not exist. On June 3, 2015, the Requester appealed to the OOR, challenging only the Department’s redactions and stating grounds for disclosure. The OOR invited the parties to supplement the record, and directed the Department to notify third parties of their ability to participate in the appeal pursuant to 65 P.S. § 67.1101(c). On June 10, 2015, the Department confirmed that it notified all “directly interested parties” of the appeal. On June 18, 2015, after receiving additional time to make its submission, the Department submitted a position statement, along with the declarations made under the penalty of perjury of 2 Steven Hilbish, Chief of Support Services in the Administrative Services Division of the Department’s Bureau of Administration (“Bureau”), Major Victor Mirarchi, Chief of Security, Robert Illgenfritz, Administrative Officer in the Bureau, Anthony Miller, Director of Correctional Industries, Michael Knaub, Accountant 3 in the Fiscal Management Division of the Bureau, and Errol Feldman, Chief Administrative Officer of JPay, Inc (“JPay”).1 On June 19, 2015, Global Tel*Link Corporation (“GTL”) submitted a request to participate in this appeal, which was granted on June 22, 2015. Along with its request to participate, GTL also submitted a position statement and the declaration made under penalty of perjury of Steve Montanaro, VicePresident of Sales and Marketing Operations for GTL. On June 26, 2015, Securus Technologies, Inc. (“Securus”) also submitted a request to participate in the appeal, which was granted on June 29, 2015. Along with its request to participate, Securus also submitted a position statement and the sworn affidavit of Steven Cadwell, Senior Account Executive – DOC, West Region. LEGAL ANALYSIS “The objective of the Right to Know Law ... is to empower citizens by affording them access to information concerning the activities of their government.” SWB Yankees L.L.C. v. Wintermantel, 45 A.3d 1029, 1041 (Pa. 2012). Further, this important open-government law 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 their actions.” Bowling v. Office of Open Records, 990 A.2d 813, 824 (Pa. Commw. Ct. 2010), aff’d 75 A.3d 453 (Pa. 2013). The OOR is authorized to hear appeals for all Commonwealth and local agencies. See 65 P.S. § 67.503(a). An appeals officer is required “to review all information filed relating to the 1 JPay did not seek to participate as a party with a direct interest pursuant to 65 P.S. § 67.1101(c); instead, Mr. Feldman affirms that JPay consulted with the Department regarding redactions. 3 request” and may consider testimony, evidence and documents that are reasonably probative and relevant to the matter at issue. 65 P.S. § 67.1102(a)(2). An appeals officer may conduct a hearing to resolve an appeal; however, the decision to hold a hearing is discretionary and nonappealable. Id.; Giurintano v. Pa. Dep’t of Gen. Servs., 20 A.3d 613, 617 (Pa. Commw. Ct. 2011). Here, neither of the parties requested a hearing, and the OOR has the requisite information and evidence before it to properly adjudicate this matter. The Department is a Commonwealth agency subject to the RTKL that is required to disclose public records. 65 P.S. § 67.301. Records in the possession of a Commonwealth agency are presumed to be public, unless exempt under the RTKL or other law or protected by a privilege, judicial order or decree. See 65 P.S. § 67.305. Upon receipt of a request, an agency is required to assess whether a record requested is within its possession, custody or control and to respond within five business days. 65 P.S. § 67.901. An agency bears the burden of proving the applicability of any cited exemption(s). See 65 P.S. § 67.708(b). Section 708 of the RTKL clearly places the burden of proof on the public body to demonstrate that a record is exempt. In pertinent part, Section 708(a) states: “(1) The burden of proving that a record of a Commonwealth agency or local agency is exempt from public access shall be on the Commonwealth agency or local agency receiving a request by a preponderance of the evidence.” 65 P.S. § 67.708(a). Preponderance of the evidence has been defined as “such proof as leads the fact-finder … to find that the existence of a contested fact is more probable than its nonexistence.” Pa. State Troopers Ass’n v. Scolforo, 18 A.3d 435, 439 (Pa. Commw. Ct. 2011) (quoting Pa. Dep’t of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821, 827 (Pa. Commw. Ct. 2010)). 1. The contracts at issue are financial records 4 The RTKL defines “financial records” to include “[a]ny account, voucher or contract dealing with: (i) the receipt or disbursement of funds by an agency; or (ii) an agency’s acquisition, use or disposal of services, supplies, materials, equipment or property.” 65 P.S. § 67.102 (emphasis added). Section 708(c) of the RTKL states that “[t]he exceptions set forth in subsection (b) shall not apply to financial records, except that an agency may redact that portion of a financial record protected under subsection (b)(1), (2), (3), (4), (5), (16), or (17).” 65 P.S. § 67.708(c). Here, the records at issue constitute various portions of contracts that the Department has entered into with service providers. The contracts are financial records under the RTKL, as they involve the Department’s acquisition of services and equipment. See 65 P.S. § 67.102. While some of the information at issue in this appeal is contained in attachments to the contracts, these attachments are part and parcel of the contracts. As the contracts are financial records, they may be redacted only pursuant to certain exemptions under the RTKL. See 65 P.S. § 67.708(c). The Department, GTL, Securus, and JPay argue that the contracts contain bidder financial information that is exempt from disclosure under 65 P.S. § 67.708(b)(26) and confidential proprietary information and trade secrets that are exempt from disclosure under 65 P.S. § 67.708(b)(11). Likewise, the Department argues that the PA Prison Society contract contains a certificate of liability insurance that is exempt from disclosure under 65 P.S. § 67.708(b)(27). However, pursuant to 65 P.S. § 67.708(c), the Department may not redact information on these bases. Accordingly, Sections 708(b)(11), 708(b)(26) and 708(b)(27) of the RTKL do not apply because the contracts at issue are financial records.2 2 While the OOR has previously held that government contracts may be redacted pursuant to Section 708(b)(11), see e.g., Maulsby v. Pa. Dep’t of Corr., OOR Dkt. AP 2014-1480, 2014 PA O.O.R.D. LEXIS 1268, the appropriate legal reason for withholding trade secrets within a contract or other financial record lies under the Pennsylvania Uniform Trade Secrets Act. Commonwealth v. Eiseman, 85 A.3d 1117, 1124 (Pa. Commw. Ct. 2014). 5 However, Section 306 of the RTKL states that “[n]othing in [the RTKL] shall supersede or modify the public or nonpublic nature of a record or document established in Federal or State law, regulation or judicial order or decree.” 65 P.S. § 67.306. As a result, “Section 708(c) cannot dilute operation of another law that provides an independent statutory bar to disclosure.” Commonwealth v. Eiseman, 85 A.3d 1117, 1124 (Pa. Commw. Ct. 2014). 2. The Department may redact confidential tax return information The Department explains that it redacted federal employer identification numbers from the Securus, GTL, PA Prison Society, and Scotlandyard contracts, and a one-page tax return that was attached to the JPay contract. Meanwhile, Mr. Montanaro, on behalf of GTL, attests that the redacted information includes federal tax returns submitted by GTL’s subcontractor, Mid Atlantic Consultants. Section 6103(a) of the Internal Revenue Code (“Code”) prohibits disclosure of “returns” and “return information.” 26 U.S.C. § 6103(a); see also Fort Cherry Sch. Dist. v. Coppola, 37 A.3d 1259 (Pa. Commw. Ct. 2012) (finding that W-2 forms constitute confidential “return information”); Office of the Budget v. Campbell, 25 A.3d 1318 (Pa. Commw. 2011) (same). Therefore, the OOR has held that confidential return information may be redacted from the contracts. See Kerns v. Pa. Turnpike Comm’n, OOR Dkt. AP 2013-0959, 2013 PA O.O.R.D. LEXIS 592. Here, the above-referenced tax returns are explicitly confidential under the Code. See 26 U.S.C. § 6103(b)(1) (defining “return”). Further, federal employer identification numbers are confidential “return information” under the Code. Id. § 6103(b)(2)(A) (defining “return information” to include “a taxpayer’s identity … or any other data, received by, recorded by, prepared by, furnished to, or collected by the Secretary with respect to a return….”); see also 6 Kerns, OOR Dkt. AP 2013-0959, 2013 PA O.O.R.D. LEXIS 592 (allowing the redaction of tax identification numbers). Therefore, the Department may withhold the tax returns and redact the tax return information pursuant to the Code. 3. Some of the redacted information constitutes trade secrets under the Pennsylvania Uniform Trade Secrets Act (“Act”) The Department and the direct interest participants argue that certain information constitutes trade secrets. While the parties cite to Section 708(b)(11) of the RTKL as the basis for withholding these alleged trade secrets, the “Act [i]s a separate statutory defense” separate from Section 708(b)(11). See Eiseman, 85 A.3d at 1125. The Act defines a “trade secret” as: Information, including a formula, drawing, pattern, compilation including a customer list, program, device, method, technique or process that: (1) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. 12 Pa.C.S. § 5302; see also 65 P.S. § 67.102 (defining “trade secret” for purposes of Section 708(b)(11) of the RTKL). The Act protects against “misappropriation” of trade secrets. See 12 Pa.C.S. § 5302; Parsons v. Pa. Higher Ed. Assistance Agency, 910 A.2d 177 (Pa. Commw. Ct. 2006). “Whether information qualifies as a ‘trade secret’ is a highly fact-specific inquiry that cannot be distilled to a pure matter of law.” Eiseman, 85 A.3d at 1126. Pennsylvania courts confer “trade secret” status based upon 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 7 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. See, e.g., Crum v. Bridgestone/Firestone N. Amer. Tire, 907 A.2d 578 (Pa. Super. Ct. 2006) (adopting standard from RESTATEMENT (SECOND) OF TORTS § 757 (1965)). To constitute a “trade secret,” it must be an “actual secret of peculiar importance to the business and constitute competitive value to the owner.” Parsons, 910 A.2d at 185. The most critical criteria are “substantial secrecy and competitive value.” Crum, 907 A.2d at 585. a. Securus contract The Department and Securus argue that a portion of their contract known as the “Implementation Plan” is exempt from disclosure because it constitutes a trade secret. Mr. Cadwell, on behalf of Securus, attests, in relevant part: 7. Proposals submitted in response to a request for proposals are, by their nature, competitive. Each closely guards their confidential information to limit a competitor’s ability to review and to use this confidential information against the creator in future procurements. 8. With respect to the RFP, each of the competitors in this procurement, Securus, CenturyLink and GTL, has engaged in procurement competitions against one another in numerous jurisdictions throughout the United States. In many cases, the competitions are very close and each competitor looks for any advantage to be selected for the contract…. 10. In this case, Securus submitted a proposal in response to the RFP that included several categories of confidential information that Securus takes great pains to ensure that its confidentiality is protected[, including] ... Securus’ implementation plan for providing the telephone services under the contract (“Implementation Plan”). 11. Securus provided the [Implementation Plan] to [the Department] with the understanding that the information would remain confidential. At the time of the submission, Securus marked the documents as confidential and provided a written statement to [the Department] that the records contain a trade secret or confidential proprietary information. 12. Securus took other substantial and remarkable measures to protect the confidentiality of the [Implementation Plan]. Securus closely restricted access to the documents submitted with its proposal to only those employees 8 essential to preparation of Securus’ response to the RFP. Securus provides confidentiality training to its employees. In addition, Securus has not otherwise disclosed the documents or confidential information to any other party except for [the Department]. Finally, Securus destroyed all nonessential copies of the documents submitted to [the Department] in order to further ensure no additional dissemination of this information…. 14. The Implementation Plan contains Securus’ proprietary methods and processes for providing telephone services to inmates under the contract. Securus developed this unique Implementation Plan to, among other things, differentiate Securus and its operations from competitors like CenturyLink and GTL. The Implementation Plan was developed for exclusive used by Securus. 15. Securus has made a considerable financial investment in the Implementation Plan in order to develop the unique methods and techniques. One of the goals of this investment was to provide a system to correctional agencies that is both efficient and effective. 16. Securus competes in a highly-competitive niche market by providing telephone services to inmates within prison systems…. 17. [I]f the Implementation Plan is disclosed to the public, this disclosure would afford Securus’ competitors insight into Securus’ proprietary methods and processes for providing such telephone services for [the Department]. Securus’ competitors would gain insight into how Securus’ system operates, what its components are, how Securus manages the inmate calling process and how Securus generates revenues and incurs costs. Securus’ competitors would know exactly how to identify and to address both the strengths and weaknesses of the Securus’ system for use in future procurement competitions. 18. This information could be utilized by the competitors to tailor and to structure their systems and implementation plan to the competitive disadvantage of Securus. 19. The Implementation Plan derives independent economic value to Securus because it is not known by Securus’ competitors and is not reasonably ascertainable by proper means. Disclosure of this information to Securus’ competitors will allow them to simulate the processes that Securus developed for its own use or otherwise impede Securus’ ability to compete on future procurements. Under the RTKL, a statement made under the penalty of perjury may serve as sufficient evidentiary support. See Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515, 520-21 (Pa. Commw. Ct. 2011); Moore v. Office of Open Records, 992 A.2d 907, 909 (Pa. Commw. Ct. 2010). Based upon the above evidence, Securus has demonstrated that it took various measures to protect the Implementation Plan’s secrecy, including limiting the employees who have access to the 9 Implementation Plan and destroying all “non-essential copies” of the records. Further, Securus has demonstrated that there is a competitive market to provide telephone services to inmates, and that disclosure of the Implementation Plan would allow competitors to gain insight into Securus’ business model and ultimately simulate how it conducts its business. Therefore, Securus has met its burden of proving that the Implementation Plan constitutes a trade secret and is not subject to public access. b. JPay Contract The Department and JPay also argue that portions of their contract constitute trade secrets. Mr. Feldman, on behalf of JPay, attests, in relevant part, regarding the records redacted or withheld by the Department: 5. Facility Descriptions and Screenshots: The above-listed facility descriptions and screenshots … were redacted pursuant to Section 708(b)(11) of the RTKL because they constitute … trade secrets. The facility system descriptions and screenshots are descriptions of the system, products and processes and actual snapshots of computer program screens marketed by JPay to provide the underlying services requested by the [Department]. The facility system and screenshots set forth in the redacted materials describe JPay’s proprietary methods and processes for providing its e-commerce services to the [Department]. JPay has taken a number of steps to maintain the confidentiality of its system and interface depicted in the screenshots, and each client logs into the system with personal login credentials. Clients and JPay employees are the only individuals having access to this information. As such information is not generally available to the public, disclosure of this information would result in substantial economic harm as JPay’s competitors would have access to JPay’s proprietary information. JPay competes in a niche market by providing certain services, including e[-]commerce, communication and financial services to prison systems. Provision of this information to JPay’s competitors will allow them to simulate those processes, or otherwise impede JPay’s ability to compete for the same market share…. Furthermore, JPay has expended considerable financial resources developing the methods and techniques embodied in the redacted information. JPay currently has a pending patent on all of its applications and the related Intel system which is fully integrated with each individual service offered by JPay to the [Department]. This patent-pending system is accessible via the online interface described in the facility descriptions and screenshots JPay is seeking to protect. 10 6. Electronic Payment Flow Chart: The above-listed electronic payment flow chart … is proprietary information and is considered a trade secret. This chart reflects JPay’s proprietary method for processing a funds transfer which is central to one of JPay’s main services offered to the [Department] and its inmates. Such information is not generally available to the public and disclosure of such information would result in substantial economic harm as JPay’s competitors would have access to this confidential information. 7. Implementation Plan: The above-listed implementation plan … is a trade secret. The implementation plan reflects JPay’s proprietary method, technique and process to install and operate its patent-pending system. Such information is generally not available to the public and disclosure of such information would result in substantial economic harm as JPay’s competitors would have access to such confidential information. 8. Customer List: The above-listed customer list … was redacted pursuant to Section 708(b)(11) of the RTKL because it is a trade secret. The definition of trade secret as set forth in the law specifically identifies customer lists as exempt information. Such information is not generally available to the public and disclosure of such information would result in substantial economic harm as JPay’s competitors would have access to such confidential information…. Based on the above evidence, the Department and JPay have demonstrated that the facility descriptions and screenshots are subject to efforts to maintain their secrecy, as only clients and employees of JPay have access to it. Further, the Department and JPay have demonstrated that disclosure of this information will allow competitors in the market to simulate JPay’s processes, ultimately resulting in harm to the competitive position of JPay. Therefore, the Department and JPay have met their burden of proving that this information constitutes a trade secret. Additionally, the Department and JPay have demonstrated that the withheld customer list constitutes a trade secret, as it is specifically defined as a type of trade secret, and subject to efforts to maintain its secrecy. Likewise, the Department and JPay have demonstrated that the electronic payment flow chart and the implementation plan are trade secrets. These records constitute a “method” or “technique” regarding how JPay processes funds and how it installs and operates its system to provide services to inmates. Additionally, the information is not generally 11 available to the public, and pertains to key components in how JPay performs its business. As a result, JPay has demonstrated that the release of this information would cause competitive harm to its business. Accordingly, this information constitutes a trade secret under the RTKL, and is not subject to access. See Overby v. Pa. Dep’t of Corr., OOR Dkt. AP 2010-1014, 2010 PA O.O.R.D. LEXIS 978 (holding that the same information is exempt from disclosure as a trade secret. c. GTL contract The Department and GTL argue that portions of their contract contain trade secrets. Mr. Montanaro attests: 5. This Declaration addresses … [f]inancial information submitted to the Department for both contracts [regarding inmate telephone services and kiosks, respectively] to demonstrate GTL’s financial capability as a prospective contractor, as well as the same information of GTL’s predecessorin-interest and GTL’s subcontractor…. 6. [A]s to GTL’s financials, the redaction numbered 29 by [the Requester] covers the financial information that GTL provided to the Department, at the Department’s request, in connection with the request for proposal process for the kiosk contract, in order to demonstrate GTL’s economic capability. 7. Redaction 45 covers the same information that GTL’s predecessor-in-interest supplied respecting the telephone contract. 8. These two redactions cover information that is highly confidential to GTL. 9. The redacted information includes audited financial statements for GTL over several years, including information about GTL’s assets, income, cash on hand, receivables, expenses, licenses, taxes, property, goodwill, and other assets and liabilities. 10. Each page of the redacted documents is stamped “CONFIDENTIAL.” 11. This redacted information is maintained by GTL with the highest degree of confidence, both internally and externally. 12. Were this information to be disclosed, it would be highly damaging to GTL, a non-public company…. 21. Competitors in this industry keep the subject information confidential. 22. GTL takes steps to limit access to this information internally and externally. 23. This information has independent economic value because, if disclosed, it could be used by a competitor as part of an effort to win business away from GTL. 24. Substantial time and effort was invested to generate this information subject to the redactions. 12 Based on the evidence provided, GTL has demonstrated that it considers the withheld information as confidential, but does not explain the efforts to maintain its secrecy other than stamping records as “CONFIDENTIAL.” Notwithstanding the foregoing, however, GTL does not explain how the withheld information has independent economic value or how the information could be used to “win business away from GTL.”3 As a result, the Department and GTL have not met their burden of proving that this information constitutes trade secrets. See Eiseman, 85 A.3d at 1126-27. d. Other contracts Finally, the Department generally argues that the Scotlandyard contract contains trade secrets. However, other than the conclusory declaration of Mr. Illgenfritz, the Department has not provided any evidence in support of this assertion. See Office of the Governor v. Scolforo, 65 A.3d 1095, 1103 (Pa Commw. Ct. 2013) (“[A] generic determination or conclusory statements are not sufficient to justify the exemption of public records”); Marshall v. Neshaminy Sch. Dist., OOR Dkt. AP 2010-0015, 2010 PA O.O.R.D. LEXIS 67 (finding that an agency's conclusory affidavit was insufficient). Additionally, Scotlandyard has not sought to participate in this matter nor has it submitted any evidence. As a result, the Department has not met its burden of proving that either of these contracts contain trade secrets. See 65 P.S. § 67.708(a)(1). 4. The release of some information would threaten personal security or public safety 3 While the evidence provided by JPay did not specifically explain how disclosure of the information would cause competitive harm, the records at issue pertain to how JPay conducts its business. Here, the records identified by GTL are strictly financial records, and GTL does not explain how disclosing this information would cause competitive harm. 13 The Department argues that certain information is protected under Section 708(b)(1) of the RTKL, which exempts from public disclosure “[a] record the disclosure of which … would be reasonably likely to result in substantial and demonstrable risk of physical harm to or the personal security of an individual.” 65 P.S. § 67.708(b)(1)(ii). To establish this exemption applies, an agency must show: (1) a “reasonable likelihood” of (2) “substantial and demonstrable risk” to a person’s security. Delaware County v. Schaefer, 45 A.3d 1149, 1156 (Pa. Commw. Ct. 2012). The OOR has held that “[b]elief alone without more, even if reasonable, does not meet this heightened standard.” Zachariah v. Pa. Dep’t of Corr., OOR Dkt. AP 2009-0481, 2009 PA O.O.R.D. LEXIS 216; see also Lutz v. City of Phila., 6 A.3d 669, 676 (Pa. Commw. Ct. 2010) (holding that “[m]ore than mere conjecture is needed” to establish that this exemption applies). Based on the underlying purpose of the RTKL, “exemptions from disclosure must be narrowly construed.” See Bowling, 990 A.2d at 824; Gingrich v. Pa. Game Comm’n, No. 1254 C.D. 2011, 2012 Pa. Commw. Unpub. LEXIS 38, *16 (Pa. Commw. Ct. 2012) (“The RTKL must be construed to maximize access to government records”). In the context of a correctional institution setting, a correctional facility need not demonstrate specific prior examples of physical harm to personal security to meet the agency's burden of proof under 65 P.S. § 708(b)(1)(ii). See, e.g., Mele v. Monroe County, OOR Dkt. AP 2011-1230, 2011 PA O.O.R.D. LEXIS 1358; Bernstein v. Pa. Dep’t of Corr., OOR Dkt. AP 2011-1603, 2011 PA O.O.R.D LEXIS 1295 (holding that prison inmate policy manuals are exempt from disclosure); Rizzuto v. Pa. Dep’t of Corr., OOR Dkt. AP 2010-0916, 2010 PA O.O.R.D. LEXIS 900 (records of prison staff observations, opinions, and impressions of inmates and inmates' behavior exempt from disclosure); Chance v. Pa. Dep’t of Corr., OOR Dkt. AP 2011-0539, 2011 PA O.O.R.D. LEXIS 726; Erdley v. Pa. State Empl. Ret. Sys., OOR Dkt. AP 14 2010-0705, 20110 PA O.O.R.D. LEXIS 701; Viney v. Pa. Dep’t of Corr., OOR Dkt. AP 2009- 6 0666, 2009 PA O.O.R.D. LEXIS 125 (first names exempt from disclosure); Lancaster Newspapers, Inc. v. Lancaster County, OOR Dkt. AP 2011-0407, 2011 PA O.O.R.D. LEXIS 652 (knowledge of emergency response techniques could be exploited by inmates); Blom v. Pa. Dep’t of Corr., OOR Dkt. AP 2010-1075, 2010 PA O.O.R.D. LEXIS 888 (mental health information likely to be used by inmates to exploit other inmates to the detriment of institutional security); see also ACLU v. City of Pottsville, OOR Dkt. AP 2010-0231, 2010 PA O.O.R.D. LEXIS 322 (prior knowledge of response procedures would expose police officers to physical harm). The OOR finds credible the professional opinion of individuals assessing the risks of security and will not substitute its judgment for that of those with far more familiarity with the issues involving personal security. See Knauss v. Unionville-Chadds Ford Sch. Dist., OOR Dkt. AP 2009-0332, 2009 PA O.O.R.D. LEXIS 238. The Department also argues that the records are protected under Section 708(b)(2) of the RTKL, which exempts from disclosure “[a] record maintained by an agency in connection with ... law enforcement or other public safety activity that if disclosed would be reasonably likely to jeopardize or threaten public safety ... or public protection activity.” 65 P.S. § 67.708(b)(2). In order to withhold records under Section 708(b)(2) of the RTKL, an agency must show: (1) the records at issue relate to a law enforcement or public safety activity; and (2) disclosure of the records would be reasonably likely to threaten public safety or a public protection activity. Carey v. Dep't of Corr., 61 A.3d 367, 374-75 (Pa. Commw. Ct. 2013). “Reasonably likely” has been interpreted as “requiring more than speculation.” Id. at 375. a. GTL contract Mr. Montanaro, on behalf of GTL, attests, in relevant part: 15 16. The [Investigative Management System (“IMS”)] tool, as well as other similar tools, are at the Department’s disposal in order to detect and obtain intelligence respecting otherwise hidden activities, which it then uses to prevent prison violence and other violations and to otherwise foster institutional security. 17. If details about IMS or similar investigative tools were to be publicly disclosed, then inmates and others could use that information to circumvent the Department’s investigations, thus exposing prison institutions to increased risk of violence. Meanwhile, the Major Mirarchi, on behalf of the Department, attests in relevant part: 6. In accordance with Department Policy DC-ADM 818, “Automated Inmate Telephone System (“AITS”) Procedures Manual,” every inmate telephone call is subject to interception, recording, and disclosure, except those placed to or from an attorney representing an inmate. 7. Electronic surveillance of inmate telephone calls is conducted by the Department in connection with its official law enforcement function of supervising the incarceration of inmates to, inter alia, ensure institutional security by assisting the Department in the detection of illicit or criminal activity by inmates or others and to investigation allegations of wrong-doing made against inmates or others. 8. Correspondingly, records of inmate telephone conversations are maintained by the Department in connection with its official law enforcement function of supervising the incarceration of inmates for the same reasons. 9. Fifty-nine pages entitled “Investigative Reports” have been redacted from the subject contract, from the section entitled “Value Added Communications,” because these pages contain the investigative tools of the Inmate Telephone System that provide facility staff with the capability to generate reports for purposes of, inter alia, criminal and noncriminal investigations undertaken by the Department in accordance with the monitoring of inmate telephone calls. 10. At Section 2 – Inmate Telephone Services, RFP No. 2005-081-011 – Technical Proposal – Tab 6 (“Technical Requirements”), language has been redacted from pages 61 through 63, page 104, and pages 173 through 175 and at Tab 3 (“Management Summary”), language has been redacted from page 12 because this language describes the [IMS], an investigative tool/application that the Department employs to identify and detect inmates involved in illicit and/or criminal activities. 11. Divulgence of the redacted portions of the contract would provide inmates with the necessary knowledge to take steps to circumvent the capabilities of the AITS, and undetected illicit, criminal and dangerous activities would proliferate within the institution placing the lives and safety of inmates, officers and others at risk. 12. The disclosure of the redacted portions of the contract would threaten public safety and the Department’s public protection activities in maintaining safe and secure correctional institutions by allowing inmates and others to access 16 information that can be used to undermine the Department’s security procedures. Based upon the foregoing evidence, the Department and GTL have demonstrated that the release of the withheld information regarding the IMS would allow inmates engaging in criminal activities to circumvent the IMS, and ultimately undermine the safety and security of the Department’s institution. As the Department and GTL have demonstrated that the release of this information would be reasonably likely to threaten the personal security of Department staff and inmates, this information is exempt from disclosure under Section 708(b)(1)(ii) of the RTKL. b. Securus contract Major Mirarchi attests, in relevant part, that portions of the Securus contract, referred to as the “Security Information” are exempt from disclosure because their release would threaten personal security and public safety.4 Specifically, Major Mirarchi attests: 7. The Contract was developed to provide the Department with an innovative, state of the art, “hosted” solution for inmate telephone service and call monitoring and recording system which will provide inmates confined to the Department’s institutions with a highly reliable, high quality service to call family and friends and give the Department the capability to perform oversight and monitoring of inmate telephone calls. 8. The Security Information provisions of the Contract define the investigative and intelligence processes and procedures for the recording and monitoring of inmate calls as well as the detection of cellular telephone usage by inmates. 9. The Security Information processes and procedures in the Contract are an integral and critical component of the Department’s efforts to perform investigations and safely and securely monitor inmate calls. 10. The Security Information provisions are part of the Department’s law enforcement functions and duties in connection with its legal responsibility for the care, custody and control of offenders committed to the Department’s custody. 11. The Security Information is confidential because it contains security-sensitive information regarding the recording and monitoring of inmate telephone calls…. 4 In its submission, Securus does not address any security concerns. proprietary nature of its information. 17 Instead, it focused on the confidential 15. Many inmates are sophisticated enough that even the disclosure of seemingly innocuous information would be used by the inmate population to the detriment of institutional security. 16. The more the inmate population knows about the Department’s telephone system and monitoring processes, the better prepared the inmates will be to use such information to cause disruptions, risking the lives of staff, other inmates, vendors, suppliers, the general public and other[s] who might be present at or near the institution. 17. Inmates could easily manipulate the Security Information contained in the Contract to circumvent the Department’s call monitoring and investigation intelligence gathering and hinder the Department’s ability to detect illicit calls and monitor the calls in the pursuit of appropriate administrative sanctions and/or criminal charges. 18. Knowledge of the contents of the Security Information provisions will allow inmates to take precautions to prevent the detection of illicit phone conversations by providing them with information to allow them to circumvent the tools used by the Department to monitor the calls. Based on the foregoing evidence, the Department has demonstrated that the Security Information contains “investigative and intelligence processes and procedures” regarding the Department’s law enforcement function, that if disclosed, would allow inmates to circumvent Department monitoring. The Department has also demonstrated that the release of this information would threaten institutional security. Based on this evidence, the Department has met its burden of proving that this information is exempt under Section 708(b)(2) of the RTKL. c. Scotlandyard contract Section 708(b)(3) of the RTKL exempts from disclosure “[a] record, the disclosure of which creates a reasonable likelihood of endangering the safety or the physical security of a building, public utility, resource, infrastructure, facility or information storage system….” 65 P.S. § 67.708(b)(3). The exemption includes “building plans or infrastructure records that expose or create vulnerability through disclosure of the location, configuration or security of critical systems….” 65 P.S. § 67.708(b)(3)(iii). In regard to the contract between the Department and Scotlandyard, the Department redacted a page referenced as a “Building Plan.” 18 Mr. Ilgenfritz, on behalf of the Department, attests that this information “was redacted in accordance with several exemptions of the RTKL, specifically, [the] building security exemption, which excludes records that create a reasonable likelihood of endangering the safety or physical security of a building, such as, the physical security of Scotlandyard’s location for video visitation.” However, conclusory affidavits or statements made under penalty of perjury are insufficient to meet an agency's burden of proof. See Scolforo, 65 A.3d at 1103. The Department has not demonstrated why the release of the Building Plan would be reasonably likely to endanger the physical security of a building.5 Therefore, it has not met its burden of proving that this record is exempt under Section 708(b)(3) of the RTKL. See 65 P.S. § 67.708(a)(1). Likewise, the Department also argues that the release of the Building Plan “would reveal proprietary information and trade secrets which Scotlandyard has spent considerable time and effort in protecting,” and “would jeopardize the Department’s interests in safely and securely delivering video visitation for inmates.” However, these conclusory statements are insufficient to meet the Department’s burden of proof, as there is no explanation of why the information is a trade secret, or why the release of the Building Plan would pose a safety risk. Therefore, the Department has not met its burden of proving that the Building Plan is exempt from disclosure. 5. The Department has not met its burden of proving that signatures are exempt from disclosure The Department also argues that various signatures are exempt from disclosure under Section 708(b)(1)(ii) because their release would threaten individuals’ personal security. However, other than conclusory affidavits merely stating that the signatures are exempt from 5 Notably, the Department’s Chief of Security, Major Mirarchi, attests to security risks regarding portions of the GTL and Securus contracts; however, Major Mirarchi does not address the Department’s claim that the release of the Building Plan also poses a security risk. 19 disclosure, the Department has not provided any competent evidence establishing that the release of the signatures would threaten individuals’ personal security. Cf. Governor’s Office of Admin. v. Purcell, 35 A.3d 811 (Pa. Commw. Ct. 2011). As such, the Department has not met its burden of proving that this information is exempt from disclosure. 6. The Department has proven that records contain personal identification information Finally, the Department argues that it redacted six pages of resumes that were attached to the JPay contract because they contained the personal or cellular telephone numbers of JPay personnel. Section 708(b)(6) of the RTKL exempts from disclosure “personal identification information,” including “home, cellular or personal telephone numbers.” 67.708(b)(6)(i)(A). See 65 P.S. § Accordingly, the Department has met its burden of proving that the information redacted from the resumes is exempt from disclosure under Section 708(b)(6) of the RTKL. See 65 P.S. § 67.708(a)(1). CONCLUSION For the foregoing reasons, the Requester’s appeal is granted in part and denied in part and, subject to the redaction of tax information, trade secrets and personal identification information, the Department is required to provide the Requester with copies of the records within thirty days. This Final Determination is binding on all parties. Within thirty days of the mailing date of this Final Determination, any party may appeal to the Commonwealth Court. 65 P.S. § 67.1301(a). All parties must be served with notice of the appeal. The OOR also shall be served notice and have an opportunity to respond according to court rules as per Section 1303 of the RTKL. This Final Determination shall be placed on the OOR website at: http://openrecords.state.pa.us. 20 FINAL DETERMINATION ISSUED AND MAILED: August 12, 2015 ______________________ APPEALS OFFICER KYLE APPLEGATE, ESQ. Sent to: Paul Wright (via e-mail only); Valerie Janosik-Nehilla, Esq. (via e-mail only); Andrew Filkosky (via e-mail only); Karl Myers, Esq. (via e-mail only); Grainger Bowman, Esq. (via e-mail only) 21 Attachment 8 Received 03/16/2016 Commonwealth Court of Pennsylvania Filed 03/16/2016 Commonwealth Court of Pennsylvania 1678 CD 2015 In the Commonwealth Court of Pennsylvania _______________ No. 1678 CD 2015 __________________________________________ GLOBAL TEL*LINK CORPORATION, Petitioner, v. PAUL WRIGHT AND PRISON LEGAL NEWS, Respondents. _________________________________________ On Petition for Review of the Final Determination of the Office of Open Records, Docket No. AP 2015-0909, issued and mailed August 12, 2015 ______________________________ BRIEF OF RESPONDENTS PAUL WRIGHT AND PRISON LEGAL NEWS ______________________________ Mary Catherine Roper (I.D. 71107) Deputy Legal Director ACLU of Pennsylvania P.O. Box 60173 Philadelphia, PA 19102 Phone: 215-592-1513 Fax: 215-592-1343 Stephen A. Fogdall (I.D. 87444) Arleigh P. Helfer III (I.D. 84427) SCHNADER HARRISON SEGAL & LEWIS LLP 1600 Market Street, Suite 3600 Philadelphia, PA 19103 Phone: 215-751-2000 Fax: 215-751-2205 Counsel for Respondents TABLE OF CONTENTS I. Counter-Statement of Jurisdiction .....................................................................2 II. Counter-Statement of Determination in Question .............................................2 III. Counter-Statement of Standard and Scope of Review .....................................2 IV. Counter-Statement of the Questions Involved .................................................3 V. Counter-Statement of the Case ..........................................................................4 A. The Right-to-Know Request .........................................................................4 B. The DOC’s Response ....................................................................................4 C. Mr. Wright’s and PLN’s Appeal to the OOR ...............................................6 D. The Final Determination of the OOR ..........................................................10 VI. Summary of Argument ...................................................................................12 VII. Argument .....................................................................................................13 A. The OOR Correctly Determined That the Financial Information at Issue Is Part of a Financial Record to Which Neither of the Asserted Exceptions Applies .................................................................................................................16 1. The Contracts Are Financial Records ......................................................18 2. The Financial Information Has Been Made Part of the Contracts ...........18 B. Assuming, Arguendo, That Section 708(c) Does Not Apply, GTL Has Not Established That the Exemptions from Disclosure in 708(b)(11) and (26) Apply .....................................................................................................26 1. GTL Failed To Establish That the Confidential Proprietary Information Exemption of Section 708(b)(11) Applies .......................................................27 2. GTL Failed To Establish That the Exemption From Disclosure in Section 708(b)(26) Pertaining to Materials of a Bidder or Offeror Applies ................29 VIII. Conclusion ...................................................................................................35 i PHDATA 5620012_2 TABLE OF AUTHORITIES Page Cases Bowling v. Office of Open Records, 75 A.3d 453 (Pa. 2013)............................... 2, 24 Commonwealth v. Eiseman, 85 A.3d 1117 (Pa. Cmwlth. 2014), rev’d, 125 A.3d 19 (Pa. 2015) ................................................................. 11, 27, 28 Commonwealth v. Eiseman, 125 A.3d 19 (Pa. 2015)........... 11, 12, 17, 20, 23-24, 31 Commonwealth v. United States Steel Corp., 311 A.2d 170 (Pa. Cmwlth. 1973) ............................................................................................. 14 Commonwealth v. Wrecks, 931 A.2d 717 (Pa. Super. 2007) .................................... 29 Hill v. Dep’t of Corrections, 64 A.3d 1159 (Pa. Cmwlth. 2013) .............................. 14 Hodges v. Pennsylvania Dep’t of Corrections, OOR Dkt. No. 2015-0241, 2015 PA O.O.R.D. LEXIS 320 (OOR Mar. 23, 2015) ....................................... 28 In the Interest of F.B., 726 A.2d 361 (Pa. 1999) ...................................................... 14 Maulsby v. Pennsylvania Dep’t of Corrections, OOR Dkt. No. 2014-1480, 2014 PA O.O.R.D. LEXIS 1268 (OOR Nov. 25, 2014) ..................................... 11 Moore v. Office of Open Records, 992 A.2d 907 (Pa. Cmwlth. 2010) .................... 26 Office of the Governor v. Scolforo, 65 A.3d 1095 (Pa. Cmwlth. 2013) ................... 27 Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515 (Pa. Cmwlth. 2011) .................26, 33 West Chester Univ. v. Schackner, 124 A.3d 382 (Pa. Cmwlth. 2015) ...................................................................... 2, 17, 21-22, 27 ii PHDATA 5620012_2 Statutes Statutory Construction Act of 1972 1 Pa. C.S. § 1921(b) ............................................................................................ 23 18 Pa. C.S. § 4904 .................................................................................................. 7, 9 Right-to-Know Law 65 P.S. § 67.102 ......................................................................................10, 16, 18 65 P.S. § 67.708(b)(11) ................................................................................passim 65 P.S. § 67.708(b)(26) ................................................................................passim 65 P.S. § 67.708(c).......................................................................................passim 65 P.S. § 67.1101(c).............................................................................................. 8 65 P.S. § 67.1301 .................................................................................................. 2 Uniform Trade Secrets Act 12 Pa. C.S. § 5302............................................................................................... 11 Other Authorities Department of General Services, Procurement Handbook ..................................... 19 Federal Communications Commission, In the Matter of Rates for Interstate Inmate Calling Services, Second Report and Order and Further Notice of Proposed Rulemaking, WC Docket No. 12-375 (released Nov. 5, 2015) .......... 15 iii PHDATA 5620012_2 Respondents Paul Wright and Prison Legal News, through their undersigned counsel, submit this brief in opposition to petitioner Global Tel*Link Corporation’s petition for review. For the reasons more fully explained below, Mr. Wright and Prison Legal News submit that the Office of Open Records (“OOR”) correctly concluded that financial information included in the contracts with the Pennsylvania Department of Corrections (“DOC”) constitute financial records that should be produced to further the Right-to-Know Law’s goal of opening governmental contracts to public scrutiny. Here, that policy is expressly implicated because the contracts at issue pay money to the DOC in the form of commissions, and those commissions derive from exorbitant fees that Global Tel*Link charges by providing telephone and other services to prisoners and their families in a monopolistic setting—literally a captive market. Further, Mr. Wright and Prison Legal News respectfully submit that the OOR correctly determined that the DOC and Global Tel*Link failed to demonstrate that the financial information, much of which may be more than ten years old, was in the nature of trade secrets or confidential proprietary information that would harm Global Tel*Link if disclosed. Accordingly, Mr. Wright and Prison Legal News request that this Court affirm the August 12, 2015 Final Determination of the OOR. 1 PHDATA 5620012_2 I. COUNTER-STATEMENT OF JURISDICTION Mr. Wright and Prison Legal News (“PLN”) concur with Global Tel*Link’s statement of the basis of this Court’s appellate jurisdiction to hear this petition for review with the exception of Global Tel*Link’s invocation of 65 P.S. § 67.1301, which is not an appropriate jurisdictional basis for this appeal. Global Tel*Link (“GTL”) is neither a requester nor a governmental agency—it is an interested third party under section 1101 of the Right-to-Know Law (“RTKL”)—and no requester or governmental agency filed a petition for review here. See 65 P.S. § 67.1301; see also West Chester Univ. v. Schackner, 124 A.3d 382, 390-91 (Pa. Cmwlth. 2015) (citing Allegheny Co. Dep’t of Admin. Servs. v. A Second Chance, Inc., 13 A.3d 1025, 1032 (Pa. Cmwlth 2011)). Accordingly, GTL’s right to appeal does not arise under section 1301. See 65 P.S. § 67.1301; Schackner, 13 A.3d at 391. II. COUNTER-STATEMENT OF DETERMINATION IN QUESTION Mr. Wright and PLN concur with GTL’s statement of the determination in question. III. COUNTER-STATEMENT REVIEW OF STANDARD AND SCOPE OF The standard of review is de novo and the scope of review is plenary. See Bowling v. Office of Open Records, 75 A.3d 453, 477 (Pa. 2013). This Court may adopt the findings and legal conclusions of the OOR when appropriate. See id. at 474. 2 PHDATA 5620012_2 IV. COUNTER-STATEMENT OF THE QUESTIONS INVOLVED 1. Was the financial information at issue made part of contracts that constitute agency “financial records,” as defined in section 102, subject to disclosure under the RTKL, such that statutory exemptions from disclosure set forth in section 708(b)(11) and (b)(26) do not apply by operation of section 708(c)? (Answer Below: the OOR agreed.) 2. Assuming, arguendo, that potential application of the exemption in section 708(b)(11) of the RTKL was not precluded by the status of the financial information as financial records, did the OOR correctly determine that GTL and the DOC failed to establish via a preponderance of the evidence that the financial information at issue, much of which is from a predecessor company and at least ten years old, constitutes proprietary information that would cause competitive harm to GTL if disclosed? (Answer Below: the OOR did not address this question because it found that the information was part of a financial record not subject to this statutory exemption and instead found that GTL failed to establish that disclosure of the information would cause it competitive harm under the separate statutory defense of the Uniform Trade Secrets Act.) 3. Assuming, arguendo, that potential application of the exemption for bidder or offeror financial information in section 708(b)(26) of the RTKL was not 3 PHDATA 5620012_2 precluded by the inclusion of the financial information in financial records, did GTL fail to demonstrate that the exemption should apply? (Answer Below: the OOR did not address this question because it found the information to be part of a financial record not subject to the exemption.) V. COUNTER-STATEMENT OF THE CASE A. The Right-to-Know Request This case involves a request for information concerning the DOC’s contracts with providers of various services to prison inmates, including inmate telephone services, under which the service providers pay commissions to the DOC in exchange for access to a captive market. To obtain such information, Mr. Wright and PLN1 submitted the request to DOC on March 27, 2015, under the RTKL, 65 P.S. §§ 67.101 to 67.3104 (the “RTKL Request”). (R. 17a-20a.) B. The DOC’s Response The DOC granted the request in part and denied it in part on or about May 12, 2015. (R. 22a-26a.) Without specifying which pages certain exemptions purportedly applied to, the DOC’s letter broadly claimed that some materials were 1 Paul Wright is the editor of PLN and executive director and founder of the Human Rights Defense Center, a 501(c)(3) non-profit organization that advocates on behalf of the human rights of people held in U.S. detention facilities. Human Rights Defense Center publishes PLN and also maintains a website for its Prison Phone Justice campaign. The Prison Phone Justice campaign website is viewable at https://www.prisonphonejustice.org/. 4 PHDATA 5620012_2 withheld from disclosure because of the RTKL’s exemptions set forth at 65 P.S. §§ 67.708(b)(11) and (b)(26). (R. 26a.) Section 708(b)(11) provides that “[a] record that constitutes or reveals a trade secret or confidential proprietary information” is exempt from disclosure. Section 708(b)(26) provides that certain bid information is exempt from disclosure: A proposal pertaining to agency procurement or disposal of supplies, services or construction prior to the award of the contract or prior to the opening and rejection of all bids; financial information of a bidder or offeror requested in an invitation for bid or request for proposals to demonstrate the bidder’s or offeror’s economic capability; or the identity of members, notes and other records of agency proposal evaluation committees established under 62 Pa.C.S. § 513 (relating to competitive sealed proposals). Among other responsive materials that are not at issue here, the DOC provided redacted versions of two contracts between itself and GTL:2 (1) an inmate telephone services contract3 and (2) a kiosk services contract.4 The DOC’s letter 2 GTL is the nation’s largest vendor of technological services to correctional institutions, with approximately 1.3 million of the nation’s inmates covered by its contracts with correctional agencies running more than 2,400 facilities in the United States. See http://www.gtl.net/about-us/company-profile/. 3 The inmate telephone services contract was awarded in 2006 to GTL’s predecessor company, MCI Worldcom Communications, Inc. As the DOC’s letter responding to the RTKL Request stated, the redacted contract is available online as a public record at http://contracts.patreasury.gov/view2.aspx?ContractID=125566. 5 PHDATA 5620012_2 did not specifically identify to what materials in each contract the exemptions in sections 708(b)(11) and (b)(26), among others not at issue here, purportedly applied. C. Mr. Wright’s and PLN’s Appeal to the OOR Because the DOC’s letter did not provide any explanation or facts justifying the purported application of various provisions exempting materials from disclosure, including redactions in the GTL contracts, Mr. Wright and PLN filed an appeal with the OOR on June 3, 2015. (R. 9a-15a.) In pertinent part, Mr. Wright and PLN challenged the DOC’s invocation of the exemptions in sections 708(b)(11) and (b)(26), which the DOC relied on in part to redact information in the GTL contracts. (R. 12a-13a.) The DOC submitted a merits response on or about June 19, 2015. In pertinent part, the DOC contended that the material redacted from the GTL contracts constituted “financial information regarding GTL.” (R. 65a-66a (kiosk contract), 71a-72a (inmate telephone service contract).) Although some of the information at issue was nearly ten years old at the time, the DOC claimed that Continued from previous page 4 The kiosk services contract was awarded to GTL in 2014. The redacted contract is available online as a public record at http://contracts.patreasury.gov/Admin/Upload/285767_Corrected%20Treasury%20 Contract%20Link%204400013765%20Kiosk%20RFP.pdf. 6 PHDATA 5620012_2 GTL submitted that information “to demonstrate its economic capability” to perform the contracts and that its disclosure would “cause substantial harm to Global Tel*Link’s market position.” (R. 66a, 71a.) The DOC therefore claimed that the “financial information” was exempt from disclosure pursuant to sections 708(b)(11) and (b)(26). (R. 66a-67a, 71a.) In support of its position, the DOC provided declarations of Anthony Miller and Steven Hilbish.5 Mr. Miller stated that the financial information at issue from the kiosk contract was redacted pursuant to section 708(b)(26) “because it is GTL’ financial information and the financial information of the identified SDB submitted in response to request for proposals to demonstrate GTL’ economic capability to perform services for the Department.” (R. 92a.) Mr. Hilbish stated that the financial information at issue from the inmate telephone services contract was redacted pursuant to section 708(b)(26) “because it is GTL’ financial information submitted in response to request for proposals to demonstrate GTL’ economic capability to perform services for the Department.” (R. 112a.) Neither the Miller 5 The Miller and Hilbesh declarations were made on penalty of perjury pursuant to 18 Pa. C.S. § 4904, relating to unsworn falsifications to authorities. (R. 90a, 109a.) 7 PHDATA 5620012_2 nor Hilbesh declaration provided any explanation or justification for the DOC’s application of the trade secrets exemption in section 708(b)(11).6 Pursuant to 65 P.S. § 67.1101(c), GTL filed a submission on or about June 19, 2015, in response to the OOR’s notice to interested parties. (R. 122a-134a.) In pertinent part, GTL announced it was filing its request to participate to protect GTL’s confidential, internal, and proprietary financial information, which was submitted to the Department for both contracts to demonstrate GTL’s financial capability as a prospective contractor, as well as the same information of a predecessor and subcontractor . . . . (R. 125a.) Pertinent to this proceeding, GTL argued that the redacted information in the GTL contracts constituted financial information of a bidder or offeror requested in an invitation for bid or request for proposals to demonstrate the bidder’s or offeror’s economic capability and also that it constituted “confidential and secret 6 Without specifically invoking the trade secrets exemption, Mr. Miller and Mr. Hilbesh both further stated in conclusory fashion that the “disclosure of the redacted portions of the Contract would result in substantial harm to GTL as it would reveal proprietary information and trade secrets which GTL has spent considerable time and effort in protecting.” (R. 92a, 112a.) Mr. Miller and Mr. Hilbesh, employees of the DOC, did not provide any foundation to explain how they know what measures GTL took to protect the information or that harm would result to GTL if it were disclosed. 8 PHDATA 5620012_2 information” that would injure GTL competitively if disclosed. Accordingly, GTL claimed the redactions were proper pursuant to sections 708(b)(11) and (b)(26). In support of its submission, GTL offered a statement from Steve Montanaro, GTL’s Vice-President of Sales and Marketing Operations. (R. 131a134a.) Mr. Montanaro’s statement, styled a “declaration,” is neither sworn nor made on penalty of perjury pursuant to 18 Pa. C.S. § 4904, relating to unsworn falsifications to authorities. In pertinent part, Mr. Montanaro explained that the redacted information in the GTL contracts concerned GTL financials that GTL and its predecessor-ininterest (MCI Worldcom Communications, Inc. (“MCI Worldcom”)) provided to DOC in order to demonstrate their economic capability. (R. 132a. at ¶¶ 6-7.)7 Mr. Montanaro claimed that the redacted information “includes audited financial statements for GTL over several years, including information about GTL’s assets, income, cash on hand, receivable, expense, licenses, taxes, property, goodwill, and other assets and liabilities.” (Id. at ¶ 9.) Mr. Montanaro also claimed that the financial information constitutes confidential and proprietary information and trade secrets of GTL. (R. 133a.) In conclusory fashion, Mr. Montanaro stated that the 7 Mr. Montanaro also addressed a redaction of subcontractor information GTL submitted in connection with the kiosk contract, allegedly consisting of two quarterly tax returns. (R. 132a.) 9 PHDATA 5620012_2 information is treated by GTL as confidential and that its disclosure would harm GTL’s competitive position. (Id.) After obtaining consent to a thirty-day extension to issue its final determination from Mr. Wright, the OOR advised Mr. Wright that it was not necessary for him to respond to the submissions of DOC and GTL. (R. 139a.) Accordingly, Mr. Wright and PLN did not file a response to the submissions of DOC and GTL. D. The Final Determination of the OOR The OOR issued its Final Determination on August 12, 2015, granting the appeal in part and denying it in part. (R. 168a-188a.) The OOR also directed the DOC to take further action, including producing the financial information of GTL and MCI Worldcom that was made part of the GTL contracts that DOC had redacted. (R. 187a.) In pertinent part, DOC held that the GTL financial information had been made part of a contract that constitutes a “financial record” of a governmental agency within the definition in 65 P.S. § 67.102 because it involved the DOC’s acquisition of services and equipment. (R. 172a.) Accordingly, because the GTL information had become part of a financial record, OOR concluded that only limited statutory exemptions to disclosure could apply, citing 65 P.S. § 67.708(c), 10 PHDATA 5620012_2 and ruled that the exemptions under 65 P.S. § 708(b)(11) and (b)(26) did not apply. (Id.) The OOR further held that, although the confidential proprietary information and trade secret exception set forth in section 708(b)(11) did not apply because the information was part of a financial record, information could still be withheld if it was in the nature of trade secrets protectable under the Pennsylvania Uniform Trade Secrets Act, 12 Pa. C.S. § 5302, citing Commonwealth v. Eiseman, 85 A.3d 1117 (Pa. Cmwlth. 2014), rev’d, 125 A.3d 19 (Pa. 2015).8 (R.180a.) In doing so, the OOR distinguished its prior decision in Maulsby v. Pennsylvania Department of Corrections, OOR Dkt. AP 2014-1480, 2014 PA O.O.R.D. LEXIS 1268, explaining that redactions of trade secrets in a contract or other financial record are justified under the Pennsylvania Uniform Trade Secrets Act, not under statutory exemptions set forth in section 708(b). (R. 172a n.2.) However, the OOR concluded that GTL nevertheless failed to offer sufficient evidence to explain the efforts it makes to maintain the secrecy of the 8 On October 27, 2015, after the OOR issued its final determination in this matter, the Supreme Court of Pennsylvania rejected this Court’s approach in Eiseman, which held that the Uniform Trade Secrets Act protected information from disclosure even when such information was attached to financial records to which the statutory exemption in section 708(b)(11) expressly does not apply. Eiseman, 125 A.3d at 32. 11 PHDATA 5620012_2 information. (Id.) The OOR further concluded that GTL did not provide sufficient evidence of how the financial information has independent economic value or how it could be used to harm GTL competitively if disclosed. (Id.) GTL filed its petition for review of the OOR Final Determination on or about September 11, 2015. VI. SUMMARY OF ARGUMENT This Court should affirm the OOR’s Final Determination with regard to disclosure of the GTL’s and its predecessor’s financial information. The OOR correctly determined that the GTL information at issue was made part of contracts that constitute “financial records” of an agency such that the statutory exemptions in section 708(b)(11) and (b)(26) do not apply. The term “financial records,” which expressly includes contracts with an agency, must be broadly construed to effect the salutary purpose of the RTKL to effect governmental transparency. See Commonwealth v. Eiseman, 125 A.3d 19, 24-25 (Pa. 2015). Further, the General Assembly knew what it was doing when it limited the statutory exemptions applicable to financial records in order to advance the law’s policy of increasing access to information to “prohibit secrets, scrutinize actions of public officials, and make public officials accountable for their actions.” Id. at 32. Assuming, arguendo, that the GTL information is not part of a financial record by virtue of being made part of the contracts with the DOC, GTL still failed 12 PHDATA 5620012_2 to present sufficient evidence to justify application of the proprietary and trade secret information exemption of section 708(b)(11). In addition, the exemption for financial information of an offeror or bidder in section 708(b)(26) must be narrowly construed, and GTL, which is contractor not a mere bidder, did not establish that the financial information at issue was limited solely to that establishing its capacity to perform. VII. ARGUMENT The OOR’s Final Determination should be upheld with regard to the GTL financial information, which is part of a contract that pays revenues to the DOC based on excessive fees that GTL charges to members of a captive population and their families wishing to stay in touch with each other. By way of background, this case unfolds in the context of governmental contracting practices in which providers of services to prison inmates, including inmate telephone services, pay “commissions” to the DOC in exchange for guaranteed monopolies in the provision of those services. The Prison Phone Justice campaign run by Human Rights Defense Center focuses on providing information to the public concerning the exorbitant rates that service providers such as GTL charge for telephone and other services, rates that benefit the governmental agencies that contract with the providers in the form of 13 PHDATA 5620012_2 “commissions.”9 These so-called commissions are arguably kickbacks from the providers to the governmental agencies, and they are paid for by the excessive rates the providers are able to charge to the inmates and their families, literally a captive market with no provider choice. Presumably, the governmental agencies benefit by awarding contracts to service providers that pay the biggest commissions. The problems and injustices created by a contract model that provides kickbacks to governmental agencies based on those agencies granting sanctioned inmate telephone service monopolies are the subject of recent Federal Communication Commission (“FCC”) scrutiny. See generally In the Matter of Rates for Interstate Inmate Calling Services, WC Docket No. 12-375.10 The FCC has determined that the inmate telephone services market is a “prime example of market failure” in which there are excessive rates and where there is no competitive pressure to reduce rates: “With respect to the consumers who pay the 9 GTL acknowledges that the contracts at issue involve payments to the DOC because “GTL pays the [DOC] a share of the revenue [generated by charging inmates for telephone and other services].” (Pet. Br. at 6 n.2.) 10 The Court may take judicial notice of the FCC proceedings and filings therein as matters of public record. See In the Interest of F.B., 726 A.2d 361, 366 n.8 (Pa. 1999); Hill v. Dep’t of Corrections, 64 A.3d 1159, 1165 n.3 (Pa. Cmwlth. 2013); Commonwealth v. United States Steel Corp., 311 A.2d 170, 172 (Pa. Cmwlth. 1973). 14 PHDATA 5620012_2 bills, [inmate telephone service] providers operate as unchecked monopolists.” See Rates for Interstate Inmate Calling Services, Second Report and Order and Further Notice of Proposed Rulemaking, WC Docket No. 12-375, para. 2 (released Nov. 5, 2015). The FCC has taken note that the users of inmate telephone services (i.e., prisoners and their families) are not party to the contracts and do not have any choice in service provider; instead, working from a position of self-interest, the state agencies agree to amounts that they are willing to let the service provider charge, a portion of which is then paid to the state agency as a “commission.” See id. para. 2 n.9. These commissions exceed the direct and reasonable costs incurred by correctional facilities and “disrupt and even invert the competitive dynamics of the industry.”11 Id. Ultimately, the FCC imposed rate caps on various inmate telephone services to address the injustice that service providers and correctional institutions perpetrate by charging exorbitant rates to inmates and their families who desire to remain in contact. See id. at para. 9.12 11 Contrary to the express findings of the FCC, GTL claims without citing any evidence that the inmate telephone services industry is “intensely competitive.” (See, e.g., Pet. Br. at 14 (“GTL . . . operates in an intensely competitive industry.”).) 12 GTL filed a petition for review of the FCC’s order on or about December 18, 2015, which has been docketed as Global Tel*Link, et al. v. Federal …Continued 15 PHDATA 5620012_2 Thus, the RTKL Request for materials pertaining to various inmate services from the DOC is part of Mr. Wright’s and PLN’s ongoing effort to shed light and public scrutiny on the self-interested dealings of the DOC with service providers like GTL that pay commissions in exchange for the opportunity to exploit some of the most vulnerable members of our society for grossly excessive profits. In part, Mr. Wright and PLN are seeking disclosure of any provider financials that demonstrate just how excessive the providers’ rates are in light of their actual costs and financial standing. Such information will enhance their efforts to seek reform of contracting in this area and to protect inmates and their families who wish to stay in touch during the inmates’ period of incarceration. Thus, there is compelling public interest in reviewing and scrutinizing the materials constituting the relationship between GTL and the DOC, just as, on the other hand, GTL would most probably desire to avoid such scrutiny. A. The OOR Correctly Determined That the Financial Information at Issue Is Part of a Financial Record to Which Neither of the Asserted Exceptions Applies The OOR correctly concluded that the financial information at issue is part of a “financial record” as defined in section 102 to which the exemptions set forth Continued from previous page Communications Commission, et al., No. 15-1461 (D.C. Cir.). Those proceedings are ongoing. 16 PHDATA 5620012_2 in section 708(b)(11) and (26) do not apply by virtue of section 708(c). The financial information should be disclosed to further the policy goals of the RTKL. The RTKL must be liberally construed “to effectuate its salutary purpose of promoting ‘access to official government information in order to prohibit secrets, scrutinize actions of public officials, and make public officials accountable for their actions.’” Eiseman, 125 A.3d at 29 (quoting Levy v. Senate, 65 A.3d 361, 381 (Pa. 2013)). Consistent with the “goal of promoting governmental transparency and its remedial nature, the exceptions to disclosure of public records must be narrowly construed.” West Chester Univ. v. Schackner, 124 A.3d 382, 393 (Pa. Cmwlth. 2015) (quoting Pennsylvania Dep’t of Educ. v. Bagwell, 114 A.3d 1113, 1122 (Pa. Cmwlth. 2015)). Additionally, the law contains a presumption of openness of any records within a defined agency’s possession: the burden is on the party seeking to apply an exemption from disclosure to establish by a preponderance of the evidence that the material is protected from disclosure. See id. In pertinent part, the RTKL defines a “financial record” as: (1) Any account, voucher or contract dealing with (i) the receipt or disbursement of funds by an agency; or (ii) an agency’s acquisition, use or disposal of services, supplies, materials, equipment or property. 17 PHDATA 5620012_2 65 Pa. C.S. § 67.102 (emphasis added). If a record sought by a requester is part of a financial record, it is subject only to a narrow, limited subset of the statutory exemptions set forth in section 708(b). See 65 Pa. C.S. § 67.708(c). Reflecting the General Assembly’s goal to increase transparency and disclosure, that subset does not include any exemption for confidential proprietary information, trade secrets, or financial information of a bidder or offeror as set forth in section 708(b)(11) and (b)(26). 1. The Contracts Are Financial Records Here, both the inmate telephone service contract and the kiosk contract are by GTL’s own admission within the definition of “financial records” because they are indisputably contracts that deal with the receipt of funds by an agency, the DOC, which receives payment under the contracts of a percentage of the fees GTL charges to inmates and their families. (See Pet. Br. at 6 n.2.) Further, there can be no dispute that the contracts also deal with the DOC’s acquisition of services within the scope of the RTKL’s definition of financial records. 2. The Financial Information Has Been Made Part of the Contracts Construing the language of the RTKL “financial records” definition broadly to effect the law’s goals of access and disclosure, the GTL financial information is logically considered part of the contracts. It is significant that GTL and DOC voluntarily appended the GTL financial information at issue to the contracts even 18 PHDATA 5620012_2 though there was no legal requirement that they do so.13 In fact, GTL itself suggests that financial information such as that at issue is attached to contracts so that “the agency can rely on and enforce the contractor’s representations.” (Pet. Br. at 20-21 (emphasis added).) In other words, the financial information attached to appendices to the contracts is material to GTL’s obligations and performance under both of the contracts. It is difficult to see how such information relevant to the performance of a contract that pays funds to a state agency could be treated as anything other than a financial record under the RTKL. To be sure, information material to the performance of a contract that generates payment of funds to the government and to which that information is attached is undoubtedly “part and 13 Unable to point to any legal requirement that the financial information be attached to the contract, GTL claims that the Procurement Handbook “contemplates” that an agency contract will attach the contractor’s proposal, including financials. (See Pet. Br. at 19 n.13.) That provision of the Procurement Handbook simply states that, with regard to contract interpretation, it is suggested that the contract should specify an order of precedence for the meanings of terms in the contract and documents incorporated by reference, with a preferred order of precedence. See Dep’t of Gen. Servs., Procurement Handbook, Part I, Ch. 43 at ¶ B. The Procurement Handbook does not say that the contractor’s proposal and the RFP are necessarily attached to every contract. It simply says that a preferred order of precedence for contractual interpretation would be contract, then proposal, then RFP. 19 PHDATA 5620012_2 parcel” of the contract, as the OOR concluded, and of particular interest to the public and the Commonwealth’s taxpayers. Treating the financial information as part of a financial record that is subject to few exemptions also is consistent with the Supreme Court of Pennsylvania’s recent decision in Eiseman. There, the court instructed that the definition of “financial records” must be read broadly to encompass records “dealing with” the disbursement of funds and acquisition of services. Eiseman, 125 A.3d at 29. The Supreme Court held that materials submitted to a governmental agency for approval, even though not themselves contracts with the government, constituted “financial records” because they were pertinent to a contract dealing with disbursement of public money or governmental acquisition of services. Id. Like the materials in Eiseman, the materials that GTL provided to DOC in their proposal were submitted for approval and are pertinent to a contract dealing with the receipt of funds by the agency and its acquisition of services. Accordingly, because the materials GTL provided are properly viewed as part of the contracts dealing with receipt of money and acquisition of services by the DOC, they are financial records that, by virtue of section 708(c), are not subject to exemptions set forth in 708(b)(11) or (26). GTL’s arguments to the contrary are unavailing. In the main, GTL relies on OOR decisions that applied section 708(b)(26) to prevent disclosure of financial 20 PHDATA 5620012_2 information submitted in connection with RFPs. (See Pet. Br. at 17 & n. 11.) However, none of the cases GTL cites concerns a contract that pays money to a governmental agency in exchange for a sanctioned monopoly. And none of those cases discusses whether the materials at issue were made part of a contract and, therefore, financial records not subject to the exemption set forth in section 708(b)(26). Indeed, the main case GTL relies on dealt with a RTKL request for a response to a request for quotations, which standing alone is not a contract (or, therefore, a financial record), and which yielded no discussion or analysis of whether a document attached to a contract that pays money to the governmental agency constitutes a financial record. (See id. at 17 (citing Hodges v. Pennsylvania Dep’t of Corrections, No. 2015-0241, 2015 PA O.O.R.D. LEXIS 320 (OOR Mar. 23, 2015)).) GTL also contends that this Court has previously rejected the OOR’s reading of 708(c) to bar the application of the section 708(b) exemptions at issue, citing Schackner. However, Schackner did not reject the approach taken by the OOR here, and GTL misreads the case. The OOR here concluded that the GTL financial information was part of the contract and therefore a financial record not subject to the exclusions set forth in 708(b)(11) or (26) in light of 708(c)’s unquestionable directive that those exclusions do not apply to financial records. Schackner, on the other hand, concerned two separate requests for information. In response to an 21 PHDATA 5620012_2 appeal from the first request, the OOR determined that certain enumerated exceptions to disclosure in 708(b)(10) and (11) did not apply to a contract because the agency and interested parties had failed to offer sufficient evidence to justify application of those exceptions. Schackner, 124 A.3d at 387. Curiously, only after rejecting the specific enumerated exemptions did the OOR say that the contract had to be produced in its entirety as a “financial record.” Id. at 387. With regard to the second request, the issue of financial records did not come up at all. Id. at 387-90. This Court said nothing in Schackner concerning the OOR’s apparent determination that the contract was a financial record or concerning the curtailment of exceptions to disclosure under section 708(c). To be sure, this Court did not consider that issue at all. Instead, with regard to the first request, Schackner simply considered the applicability of the exemption in 708(b)(11). Like the OOR in that case, this Court held that the petitioner had failed to supply sufficient evidence to justify application of the (b)(11) exemption and left it at that. It did not discuss financial records or section 708(c)’s prohibition on the application of that exclusion to financial records. In addition, Schackner was decided prior to the Supreme Court’s decision in Eiseman, which countenanced a broad reading of the RTKL’s definition of financial records and the application of 708(c) to bar 22 PHDATA 5620012_2 invocation of the confidential proprietary information exemption of section 708(b)(11). Thus, Schackner is not instructive here. In any event, although GTL criticizes the OOR’s reading of the plain text of section 708(c) as “absurd and unreasonable” (Pet. Br. at 19), it is significant that GTL does not offer any alternative reading of section 708(c). On the other hand, the reading the OOR gave to section 708(c) is the same reading of its plain terms that the Supreme Court gave it in Eiseman. See Eiseman, 125 A.3d at 32. If the General Assembly had wished for contractor financials and confidential proprietary information in financial records to be withheld from disclosure, it would have specifically included those exemptions in section 708(c). Id. Section 708(c) could not be more clear. Consistent with the reading given to it by the OOR and Supreme Court, it expressly states that the exemptions from disclosure set forth in 708(b) do not apply to financial records, subject to limited exceptions that do not apply here. Under well-known and longstanding rules of statutory construction, the clear statutory text of section 708(c) must be given effect as expressing the intent of the General Assembly. See 1 Pa. C.S. § 1921(b). If information is contained in a financial record, as here, it simply cannot be shielded from disclosure under section 708(b)(11) or (26). See, e.g., Eiseman, 125 23 PHDATA 5620012_2 A.3d at 32 n.12 (“[C]onfidential proprietary information within financial records is subject to public disclosure under the [Right-to-Know] Law.”).14 Finally, GTL contends that the OOR should have read the term “contract” in section 102’s definition of “financial records” narrowly to mean only the express terms in the contract document. However, as GTL itself explains, the attachments to contracts, including the contractor’s financial information, are instrumental in ensuring proper performance of those contracts. Thus, financial information of a contractor is quite different from financial information of an unsuccessful bidder or offeror, which do not relate to the performance of an actual awarded contract. Reading the term “contracts” narrowly as GTL urges would run contrary to the policies to be furthered by this remedial law, which must be construed liberally in favor of disclosure.15 And, while GTL says that the financial information in the 14 Significantly, the Supreme Court rejected this Court’s application of the Uniform Trade Secrets Act to financial records where the statutory exemption in section 708(b)(11) does not apply, further reinforcing the fact that section 708(c) must be given broad application. See Eiseman, 125 A.3d at 32. 15 While GTL points to prior law in an attempt to justify its narrow construction of the term “contracts” (Pet. Br. at 22 n.17), it ignores the fact that the RTKL fundamentally altered the rules of disclosure—including introducing the concept of financial records—to vastly increase disclosure. See Bowling v. Office of Open Records, 75 A.3d 453, 457 (Pa. 2013) (“In 2008, the General Assembly enacted the RTKL, which replaced the [Right-to-Know Act] and provided for significantly broadened access to public records.”) (emphasis added). Thus, the prior law is not instructive here. 24 PHDATA 5620012_2 attachments to the contract would not be useful to anyone seeking to scrutinize the relationship it has with the DOC, to which it pays commissions in exchange for a monopoly on providing telephone and kiosk services to inmates, there has been no independent review of that information by a disinterested party: the OOR did not review it in camera to ensure that the unsworn declaration of GTL’s officer that was not made subject to the penalty of perjury is accurate. The parade of horribles that GTL offers with regard to the purported chilling effect this approach to financial records might have on future bidding ignores the fact that there is no legal requirement that such information be made part of the contract. Thus, parties that desire to have their financial information or confidential information preserved will be free to bargain for its omission from the contract documents. And, to the extent that GTL’s ostensible concern for governmental agencies’ abilities to monitor a contractor’s compliance with its obligations, the parties are free to include such language as they believe necessary to achieve that goal in the body of the contract instead of by attaching financial information. Considering all of these factors, it is GTL’s reading of section 102 and section 708(c) of the RTKL that is absurd because it flies in the face of the express language and purpose of the statute. Any contractor that does not wish to have its financial information disclosed is certainly free to reach agreements with a 25 PHDATA 5620012_2 contracting government agency not to attach such information to, or otherwise make it part of, the contract. B. Assuming, Arguendo, That Section 708(c) Does Not Apply, GTL Has Not Established That the Exemptions from Disclosure in 708(b)(11) and (26) Apply Even if the GTL financial information in the contracts somehow is not part of a financial record, GTL has not established that the narrowly-construed exemptions of 708(b)(11) or (26) apply here. GTL and the DOC failed to offer sufficient evidence to demonstrate that either exemption from disclosure applies. As the OOR noted, the conclusory statements in the statement of GTL’s officer— which is unsworn and not made on penalty of perjury—are insufficient under this Court’s precedent to justify the application of the confidential proprietary information exemption. Either sworn statements or affirmations made on penalty of perjury may serve as evidentiary support. See, e.g., Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515, 520-21 (Pa. Cmwlth. 2011); Moore v. Office of Open Records, 992 A.2d 907, 909 (Pa. Cmwlth. 2010). Further, construing the financial information exemption of section 708(b)(26) narrowly, as the Court must, there are at least two reasons it does not apply. First, the exemption in 708(b)(26) speaks only in terms of the information of bidders or offerors, not actual contracting parties. While there may be valid policy reasons to protect the information of unsuccessful bidders and offerors, the 26 PHDATA 5620012_2 public has a much greater interest in disclosure of the information of the parties that are awarded contracts. Second, the only evidentiary valid statements concerning the financial information—those submitted by DOC—make conclusory claims that the information was submitted during the proposal process to demonstrate GTL’s, and its predecessor MCI Worldcom’s, capability to perform the contracts. But those declarations do not describe what information GTL and MCI Worldcom submitted. They merely parrot the terms of the exemption. Such conclusory claims are insufficient to justify the application of a statutory exemption from disclosure. See Schackner, 124 A.3d at 393; Office of the Governor v. Scolforo, 65 A.3d 1095, 1103 (Pa. Cmwlth. 2013) (noting that a “generic determination or conclusory statements are not sufficient to justify the exemption of public records”). 1. GTL Failed To Establish That the Confidential Proprietary Information Exemption of Section 708(b)(11) Applies To establish that the confidential proprietary information exemption of section 708(b)(11) applies, one seeking to avoid disclosure must produce competent evidence that the information is (1) privileged or confidential; and (2) that its disclosure would cause “substantial harm to the competitive position of the person who submitted the information.” 65 P.S. § 67.102; see also Eiseman, 85 A.3d at 1128. Generalized or conclusory statements cannot satisfy this burden. See Schackner, 124 A.3d at 393. 27 PHDATA 5620012_2 Here, the OOR properly observed that the statement GTL submitted was conclusory and insufficiently detailed to justify application of the exemption, principally because “GTL does not explain how the withheld information has independent economic value or how the information could be used to ‘win business away from GTL.’” (R. 180a.) Indeed, even if Mr. Montanaro’s unsworn statement not made on the penalty of perjury were proper evidence, which it is not, it does not explain how disclosure of the information at issue—some of which is approximately ten-years old—could possibly harm GTL. Instead, it simply states that “Were this information to be disclosed, it would be highly damaging to GTL, a non-public company.” (R. 132a at ¶ 12.) As this Court has held, such conclusory allegations of purported competitive harm are insufficient. See Schackner, 124 A.3d at 393 (“[G]eneralized assertions do not provide the necessary specific factual basis upon which this Court could conclude that the record in question is exempt from disclosure under Section 708(b)(11) as . . . confidential proprietary information.”); Eiseman, 85 A.3d at 1129-30; compare R. 133a ¶¶ 18-24 with Hodges, 2015 PA O.O.R.D. LEXIS 320 at *8-*11 (quoting the detailed allegations made in a statement made under penalty of perjury about exactly how harm would result from disclosure). Here, the only details about the competitive harm GTL would suffer are offered for the first time in its merits brief, go far beyond Mr. Montanaro’s unsworn and 28 PHDATA 5620012_2 unverified statement, and cannot be considered in any event. See, e.g., Commonwealth v. Wrecks, 931 A.2d 717, 722 (Pa. Super. 2007) (noting that “assertions that appear only in briefs . . . are not to be considered”) (emphasis in original). Finally, GTL’s recent financial information is already in the public domain to some extent. See, e.g., http://www.prisonpolicy.org/phones/financials/ (including GTL consolidated financial statements).16 Information that has already been disclosed publicly is by definition no longer confidential or proprietary. Accordingly, even if the confidential proprietary exemption in section 708(b)(11) could apply here, which it cannot by virtue of 708(c), GTL has not carried its burden to justify application of that exemption from disclosure. 2. GTL Failed To Establish That the Exemption From Disclosure in Section 708(b)(26) Pertaining to Materials of a Bidder or Offeror Applies GTL fares no better with the exemption in section 708(b)(26), which provides that the following are exempt from disclosure if it applies: A proposal pertaining to agency procurement or disposal of supplies, services or construction prior to the award of the contract or prior to the opening and rejection of all bids; financial information of a bidder or offeror 16 The financial information was apparently produced in response to a RTKL-type request made to a state agency in another jurisdiction. 29 PHDATA 5620012_2 requested in an invitation for bid or request for proposals to demonstrate the bidder’s or offeror’s economic capability; or the identity of members, notes and other records of agency proposal evaluation committees established under 62 Pa.C.S. § 513 (relating to competitive sealed proposals). 65 P.S. § 67.708(b)(26) (emphasis added). GTL has not demonstrated that this application should shield the information at issue from disclosure. First, this exemption must be given a narrow construction in order to promote the policies to be advanced by the RTKL. See Schackner, 124 A.3d at 393. On its face, the exemption applies only to proposals prior to the award of a contract (or the rejection of all offers) and, once a contract has been awarded (or all offers are rejected), only to the information of a bidder or offeror to demonstrate that party’s economic capability. The exemption does not state that it applies to the information of the party that is awarded the contract—the contractor—but only to the information of bidders and offerors. There is a significant distinction to be drawn here: the definition of “financial record” in section 102, as well as the limited roster of exemptions that can apply to such a record, in conjunction with section 708(b)(26), demonstrates an intent on the part of the General Assembly that the actual awarded contract and information of the contractor performing it are not subject to this exemption. If the General Assembly had intended this exemption to apply to the actual contract and contractor’s information, it would have used different language in 708(b)(26) and included the term “contractor” instead of just 30 PHDATA 5620012_2 “bidder or offeror.” Instead, by the terms of the statute, the party performing the contract does not receive the same scope of protections from disclosure as those who merely bid for the contract.17 See, e.g., 1 Pa. C.S. § 1921(b). While GTL cites some OOR decisions that have applied the exemption to financial information attached to contracts, none of those prior decisions considered whether such documents were “financial records,” as the OOR did here, let alone undertook any analysis of whether the terms “bidder or offeror” include the successful contractor who is awarded the contract. The award of a contract is a transformative event, as demonstrated both by the inclusion of contracts in the definition of financial records and by the language of section 708(b)(26) itself, which only prohibits access to bid information prior to the award (or non-award) of a contract. The successful contractor’s information is of greater interest to the public because it is germane to the performance of a contract involving the disbursement or receipt of funds by an agency, especially when the parties attach 17 In this regard, it is significant that the Supreme Court determined in Eiseman that rate schedules that might otherwise enjoy protection from disclosure as confidential proprietary information that could have substantial effects on the managed care industry were subject to public review because they were related to the performance of a contract within the ambit of section 102’s definition of financial records. See Eiseman, 125 A.3d at 31-32. The Court recognized and gave effect to the General Assembly’s policy in favor of disclosure even of putatively sensitive information when it relates to the performance of public contracts. 31 PHDATA 5620012_2 that information to the contract. Given that the General Assembly intended the RTKL to vastly increase access to information to promote governmental transparency, it is reasonable to construe the exemption narrowly to apply only to the information of those bidders and offerors who were unsuccessful in their attempt to win the contract. GTL cites no opinion of this Court to the contrary. Second, even if the exemption applies to the financial information of a successful contractor, GTL has not established that the financial information at issue is limited to information necessary to demonstrate its capability. The declarations submitted by the DOC do not reveal what kind of information was submitted or how it was submitted, only that it is “financial information . . . submitted in response to request for proposals to demonstrate GTL’ economic capability to perform services for the [DOC].” (R. 92a at ¶ 14; 112a at ¶ 14.) These conclusory statements simply mirror the language of the statute and do not describe what kind of information was submitted or how it purportedly demonstrates GTL’s capability.18 Thus, they are not sufficient to justify the application of the exemption. 18 GTL’s “capability” here arguably means its financial wherewithal to pay the largest commissions to the DOC in exchange for the award of a monopoly on the provision of telephone and other services to inmates, whom it charges fees far in excess of reasonable costs according to the FCC, as noted above. 32 PHDATA 5620012_2 In addition, the statement GTL offered from Mr. Montanaro does not demonstrate that the exclusion should apply. Mr. Montanaro’s statement is not sworn or made on penalty of perjury and, thus, is not sufficient to constitute evidence. See Sherry, 20 A.3d at 520-21. Mr. Montanaro says that the redacted information “includes audited financial statements for GTL over several years, including information about GTL’s assets, income, cash on hand, receivables, expenses, licenses, taxes, property, goodwill, and other assets and liabilities.”19 (R. 132a at ¶ 9 (emphasis added).) Significantly, Mr. Montanaro does not explain whether the totality of the information is composed merely of financial statements, only that it includes such statements. Further, he does not explain whether the information GTL supplied is limited only to information that demonstrates GTL’s “economic capability,” which is the only information that could be shielded on a strict construction of the exemption, assuming it applies at all in the first place. If there is any information included in the submission that goes beyond the minimum required to establish 19 GTL asserts that Mr. Wright and PLN did not rebut Mr. Montanaro’s statement in this regard. (See, e.g., Pet. Br. at 13.) Given that the OOR advised Mr. Wright that he did not have to respond to GTL’s statement, and given that Mr. Wright and PLN have no way of rebutting claims about the nature of information that is being withheld from them, the fact that there is not a statement from Mr. Wright contradicting Mr. Montanaro does not somehow make Mr. Montanaro’s statement accurate or render it competent evidence. 33 PHDATA 5620012_2 GTL’s economic capability, the exemption should not be broadly construed to exempt such information from disclosure. In the final analysis, the contracts at issue pay millions of dollars to the DOC in exchange for the award to GTL of monopolies in the provision of telephone and kiosk services to inmates in the DOC’s custody. No disinterested party has reviewed the information at issue to guarantee that DOC and GTL are accurately representing it. Given the clear policy goals of the RTKL to advance governmental transparency and prevent agencies from keeping their dealings secret from the public, the OOR’s grant of the RTKL Request for access to this information should be upheld. 34 PHDATA 5620012_2 VIII. CONCLUSION For the forgoing reasons, respondents Paul Wright and PLN respectfully request that the Court affirm the OOR’s Final Determination. Respectfully submitted, /s/Arleigh P. Helfer III Stephen A. Fogdall (I.D. 87444) Arleigh P. Helfer III (I.D. 84427) SCHNADER HARRISON SEGAL & LEWIS LLP 1600 Market Street, Suite 3600 Philadelphia, PA 19103 Phone: 215-751-2000 Fax: 215-751-2205 Mary Catherine Roper (I.D. 71107) Deputy Legal Director ACLU of Pennsylvania P.O. Box 60173 Philadelphia, PA 19102 Phone: 215-592-1513 Fax: 215-592-1343 Counsel for Respondents 35 PHDATA 5620012_2 CERTIFICATIONS This 16th day of March, 2016, I certify that: Electronic filing. The electronic version of this brief that is filed through the Court’s PACFILE web portal is an accurate and complete representation of the paper version of that document that is being filed by respondents. Word count. This brief contains fewer than 9,000 words, as counted by the undersigned’s Microsoft Word word processing software, and it therefore complies with the 14,000-word limit set by Pennsylvania Rule of Appellate Procedure 2135(a)(1). Service. I served a true and correct copy of this brief through the Court’s PACFILE system upon counsel of record, as reflected in the PACFILEgenerated proof of service. /s/ Arleigh P. Helfer III Arleigh P. Helfer III SCHNADER HARRISON SEGAL & LEWIS LLP 1600 Market Street, Suite 3600 Philadelphia, PA 19103 (215) 751-2000 PHDATA 5620012_2 Attachment 9 Received 04/18/2016 Commonwealth Court of Pennsylvania Filed 04/18/2016 Commonwealth Court of Pennsylvania 1678 CD 2015 ____________________________________________________ IN THE COMMONWEALTH COURT OF PENNSYLVANIA ______________________________________________________ No. 1678 CD 2015 GLOBAL TEL*LINK CORPORATION, Petitioner, v. PAUL WRIGHT AND PRISON LEGAL NEWS, Respondents. ________________________________________________________ REPLY BRIEF OF PETITIONER, GLOBAL TEL*LINK CORPORATION _________________________________________________________ On Petition for Review of the Final Determination of the Office of Open Records, at Docket No. 2015-0909, issued and mailed August 12, 2015 _________________________________________________________ Karl S. Myers Pa. Id. No. 90307 STRADLEY RONON STEVENS & YOUNG, LLP 2600 One Commerce Square Philadelphia, PA 19103 (215) 564-8193 (215) 564-8120 (facsimile) Attorneys for petitioner, Global Tel*Link Corporation TABLE OF CONTENTS I. SUMMARY OF ARGUMENT ....................................................... 1 II. ARGUMENT.................................................................................. 2 A. B. C. III. The GTL Financial Information is protected by exemption 26 of the Right-to-Know Law. .............................................. 2 1. Exemption 26’s protections extend to all bidders, not just the unsuccessful ones..................................... 3 2. There is no evidence the GTL Financial Information includes other material. .............................................. 5 3. The Department and GTL submitted wholly sufficient evidence to trigger exemption 26. ............................... 6 GTL’s internal financial documents are not the government’s “financial records.” ............................................................... 8 1. Disclosure of the GTL Financial Information will not help hold the government accountable. ...................... 9 2. Financials actually are attached to agency contracts – regardless of legal requirements................................. 11 3. Requester is wrong about Eiseman............................. 13 4. Requester also is wrong about Schackner. ................. 15 5. GTL did offer an appropriate reading of 708(c) ......... 17 This case is not the place for a crusade. .............................. 19 CONCLUSION .............................................................................. 22 TABLE OF AUTHORITIES CASES Dep’t of Pub. Welfare v. Eiseman, 125 A.3d 19 (Pa. 2015) ...................................................................13-16 Hodges v. Dep’t of Health, 29 A.3d 1190 (Pa. Commw. 2011) .........................................................7 Moore v. OOR, 992 A.2d 907 (Pa. Commw. 2010) ..................................................... 6-7 Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515 (Pa. Commw. 2011) ....................................................... 6-7 West Chester University v. Schackner, 124 A.3d 382 (Pa. Commw. 2015) ..................................................15-16 STATUTES 18 Pa.C.S. §4904 ........................................................................................8 65 Pa.C.S. §67.102 ...................................................................................10 65 Pa.C.S. §67.708 ........................................................................... passim Petitioner, Global Tel*Link Corporation (“GTL”), hereby submits this reply brief in further support of its petition for review. As discussed below, and in its principal brief, GTL submits that this Court should reverse the August 12, 2015 Final Determination of the Office of Open Records as to its determination with respect to the GTL Financial Information (defined in GTL’s opening brief), and further order that no further action must be taken by the Pennsylvania Department of Corrections with respect to the GTL Financial Information. I. SUMMARY OF ARGUMENT Requester’s brief fails to move the needle, as that submission does not give this Court any reason to affirm. Instead, for the reasons laid out previously by GTL, the OOR should be reversed. The GTL Financial Information, ordered disclosed by the OOR, is plainly and indisputably within exemption 26 of the Right-to-Know Law. That exemption is specifically designed to protect internal financials that are submitted by a contractor to an agency to demonstrate the contractor’s fiscal fitness to carry out the contract. That is exactly what the GTL Financial Information is, and exactly why it was submitted to the Department of Corrections. Witnesses from both the Department and GTL specifically attested to those points. Requester fails to muster any real rebuttal to this essential thrust of GTL’s appeal. Instead, he offers a series of collateral arguments and non-sequiturs that have no merit. Because GTL has demonstrated it is entitled to relief, and requester has offered no real response, this Court should reverse the OOR. II. ARGUMENT A. The GTL Financial Information is protected by exemption 26 of the Right-to-Know Law. Exemption 26 of the Right-to-Know Law, which protects a bidder’s financial information from disclosure, is the centerpiece of GTL’s opening merits brief. One would not know it from reading Requester’s brief, however. Requester does not address that exemption until page 29 of his brief. Requester buries the lede because it presents him with an uncomfortable truth: that the GTL Financial Information is precisely the material that the General Assembly sought to protect from public disclosure when it enacted exemption 26. The Legislature wanted government contractors to divulge their financials to show they could fulfill their contractual obligations. In return for those disclosures, the General Assembly made an iron-clad guarantee: the financials never would see the light of day. -2- Here, the GTL Financial Information falls comfortably within exemption 26. The Department and GTL proved that the GTL Financial Information: (1) constituted the financial information of GTL; (2) was requested by the Department; (3) and was requested from GTL to demonstrate its economic capability. (R. 92a at ¶14, R. 112a at ¶14; R. 132a at ¶¶6-12.) Proof of these elements automatically entitles GTL to the protection of exemption 26. No further showing – such as a showing of competitive harm – is necessary.1 Accordingly, because GTL has demonstrated exemption 26 applies, the OOR must be reversed. 1. Exemption 26’s protections extend to all bidders, not just the unsuccessful ones. In his brief, requester does not offer any response to the Department’s and GTL’s unequivocal evidence that the GTL Financial Information falls within exemption 26. That is because he cannot do so. Instead, requester resorts to nibbling at the edges by way of collateral arguments – including some contentions that are downright bizarre. 1 Requester tries to misdirect the court’s attention solely to exemption 11, pertaining to confidential proprietary information. Unlike that exemption, however, GTL has no burden to prove competitive harm with regard to exemption 26. Rather, its protections are automatic once the material is shown to fall within that category. -3- Foremost among them is requester’s insistence that exemption 26 protects only the bidders who are not chosen to contract with the government – i.e., the unsuccessful bidders. (Br. at 30-31.) According to requester, a bidder suddenly becomes ineligible for exemption 26 the moment that bidder enters into a contract with the Commonwealth. There is no support anywhere in the language of exemption 26 (or anywhere else in Pennsylvania law, for that matter) for such a nonsensical reading. The language of the exemption speaks broadly in terms of all bidders or offerors. It is not limited solely to unsuccessful bidders or offerors. The statute simply does not draw the line that requester wishes it would draw. Nothing in the statute indicates any intent on the part of the Legislature to deprive successful bidders of the protection of exemption 26. Requester’s notion that contracting with the Commonwealth therefore is a “transformative event” changing the exemption 26 dynamics is a made-up notion with no basis in law. Indeed, just because GTL succeeded in landing the contracts in question does not mean that it lost its status as bidder. GTL remained a bidder. While it also could be described at that point as the successful bidder, it remained a bidder nonetheless. It is possible to -4- walk and chew gum at the same time. So too is it possible to be both a contractor and a bidder. The two concepts are not mutually exclusive. While requester relatedly claims that the public has an interest in prying into a successful bidder’s financials, he omits that an inverse proposition is true: that a successful bidder has a stronger claim to exemption 26 than an unsuccessful bidder. A successful bidder is much more vulnerable if its financials are disclosed. Competitors who lose out have a keen interest in obtaining as many of the successful bidder’s documents as possible, perhaps to support a bid protest. Unsuccessful bidders do not face such threats. The successful bidders therefore have the greatest interest of all bidders in obtaining the shelter provided by exemption 26. 2. There is no evidence the GTL Financial Information includes other material. Requester also claims the Department and GTL did not demonstrate the financial information at issue is “limited” only to the material necessary to demonstrate GTL’s economic capabilities. (Br. at 32-34.) But the Department’s and GTL’s evidence shows that the GTL Financial Information was limited to just that type of information, and that the material claimed as exempt was submitted exclusively for the -5- purpose of demonstrating GTL’s fiscal fitness. There is not a shred of evidence anywhere in the record suggesting that anything other than financial information is contained within the GTL Financial Information. The detailed witness attestations expressly state that the subject material shows only financial information for GTL. The witnesses did not suggest the presence of non-financial information. (R. 92a at ¶14, R. 112a at ¶14; R. 132a at ¶¶6-12.) Requester’s paranoid suggestion of some kind of nefarious conspiracy between the Department and GTL to stuff secret non-financial information into GTL’s financials is pure fantasy. 3. The Department and GTL submitted wholly sufficient evidence to trigger exemption 26. Perhaps requester’s most desperate argument is that GTL’s attestation was not signed in front of a notary. (Br. at 33.) This classic form-over-substance argument fails because requester cites to no case – and GTL is aware of none – holding that Right-to-Know Law attestations have to follow a set of formality rules. And the only two cases requester cites in support of this argument, Sherry and Moore, do not impose any such requirement. -6- In Sherry, the Court held merely that “we perceive no error on OOR’s part to the extent that it relied upon the affidavits in rendering its final determination.” Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515, 521 (Pa. Commw. 2011). So Sherry merely stands for the proposition that affidavits are permitted as a form of proof in Right-toKnow proceedings. The Court certainly did not hold that sworn affidavits are the exclusive method for a party to prove its position. As for Moore, far from supporting requester’s claim of a formality requirement, that case actually is the basis for the opposite rule: that Right-to-Know burdens may be satisfied “with either an unsworn attestation … or a sworn affidavit.” Hodges v. Dep’t of Health, 29 A.3d 1190, 1192 (Pa. Commw. 2011) (emphasis added; citing Moore v. OOR, 992 A.2d 907, 908-09 (Pa. Commw. 2010)). Moore therefore indicates that unsworn statements are permitted in this context. Neither case cited by requester supports his claim that formalities were required for the Department’s and GTL’s attestations. Those submissions were properly prepared, and are wholly sufficient for the Department and GTL to be entitled to the protection of exemption -7- 26.2 Although requester claims these submissions lack detail, GTL’s attestation specifically states that the GTL Financial Information includes[3] audited financial statements for GTL over several years, including information about GTL’s assets, income, cash on hand, receivables, expenses, licenses, taxes, property, goodwill, and other assets and liabilities. (R. 132a at ¶9.) GTL’s statement was plenty detailed. In fact, it is hard to see how GTL’s witness could have given any further detail without providing the numbers that GTL was trying to protect. B. GTL’s internal financial documents are not the government’s “financial records.” Instead of addressing exemption 26 head-on, requester instead seizes on the sua sponte rationale of the OOR: that the GTL Financial Information actually constitutes the government’s own 2 It also bears noting that the Department’s and GTL’s attestations were, and are, subject to the criminal sanctions provided by section 4904 of the Crimes Code, see 18 Pa.C.S. §4904, which punishes unsworn falsification to authorities. The witnesses also no doubt understood their statements were being submitted to a tribunal, and that they knew the seriousness of their undertakings as a consequence. In short: the witnesses had sufficient incentive to be truthful. 3 While requester nitpicks at the word “includes,” (Br. at 33), he misunderstands its import. That word indicates that the witness was describing the financial information contained in the redacted materials, and that the document may have contained other financial information. That word does not indicate the presence of non-financial information outside the scope of exemption 26. -8- “financial records” under section 708(c) of the Right-to-Know Law.4 As GTL previously demonstrated, OOR’s conclusion is simply wrong, and none of requester’s attempts to backfill that decision hold any water. 1. Disclosure of the GTL Financial Information will not help hold the government accountable. First, requester repeatedly contends that the “financial record” provision must be “broadly construed.” (Br. at 12.) Obscured in requester’s presentation, however, is the nuance that the broad construction principle in Right-to-Know cases is linked to the underlying purpose of ensuring government accountability. Requester even admits that this principle is connected to the Law’s policy of increasing access to “scrutinize actions of public officials” and “make public officials accountable for their actions.” (Id.) Our courts have never held, however, that the Right-to-Know Law must be blindly applied in as broad a manner as possible in every case and as to every provision of the Law, regardless of the underlying interests. Rather, 4 Requester offers no defense for OOR’s indefensible decision to raise the “financial records” provision sua sponte and without offering GTL any chance to address that issue before OOR ambushed GTL with it in OOR’s decision. -9- the broad construction principle is harnessed to the interest in monitoring government actions. Here, the broad construction principle is not implicated, because broadly construing section 708(c) to reach the GTL Financial Information does nothing to help scrutinize government actions or hold officials accountable. Requester offers no argument in support of the notion that disclosing a private contractor’s internal financial information can possibly help hold the government accountable. Given the drastic consequences involved for government contractors, the “financial record” provision should be given a more tempered reading when it comes to private contractor financials. Such a reading would be consistent with the language of that very provision, which expressly provides it is limited in application to documents depicting the “agency’s acquisition, use, or disposal of services.” 65 Pa.C.S. §67.102. In other words, “financial record” is intended to reach the agency’s internal financial records, not those of a private contractor. Such a construction is completely sensible, given the General Assembly, in enacting the Right-to-Know Law, mandated a specific exemption that was designed to preclude access to exactly those materials. Put another - 10 - way, the same government that decided to require transparency for an agency’s “financial records” simultaneously decided that there must be no transparency of a private contractor’s internal financials. Requester offers no rejoinder to the point that disclosure of the GTL Financial Information does not serve the purpose of government accountability. He instead offers a non-sequitur, suggesting that the Department’s and GTL’s submissions should not be trusted, and that there needs to be some kind of “independent review” of their claims. (Br. at 25.) This Court, however, has never required such statements to be “independently reviewed” in camera by the OOR whenever a requester has a feeling that something is fishy. 2. Financials actually are attached to agency contracts – regardless of legal requirements. Requester also tries to cling to the OOR’s misapplication of the “financial record” provision by pointing out that contractor financials are not legally required to be attached to agency contracts. (Br. at 18-19, 25.) This is a straw-man argument. GTL never argued attachment is required. GTL’s point – to which requester offers no response – is that contractor financials are universally attached to government contracts in this Commonwealth. It is a fact of life, - 11 - regardless of legal requirements. The practice is widespread, and is the recommended process set forth in the Procurement Handbook, which is the go-to contracting manual for all agencies. This reality underscores just how impossible it is to believe that the Legislature could have intended the meaning of the “financial record” provision that the OOR and requester now ascribe to it. Requester also apparently agrees that a ruling in his favor will result in the automatic – and devastating – disclosure of a host of existing and former government contractors’ financials, since he does not deny that is the result here if he prevails. But he lays the blame for this on the contractors, who he says “voluntarily” agreed to allow attachment and were “free to bargain for [the financials’] omission.” (Br. at 18-19, 25.) But the contractors, including GTL, had no way of knowing their financials would be subject to automatic disclosure by way of a future ruling of the OOR. They contracted with the Commonwealth on the basis of then-existing law, which (until the OOR’s new approach) protected their financials from disclosure. They had no need or reason to “bargain for [their] omission” before. The OOR’s decision to put the contractors’ financials at risk is a new - 12 - development. Requester’s blame of the contractors thus is no different than criticizing them for not owning time machines or crystal balls. Whatever the case, requester’s argument cannot be taken seriously.5 3. Requester is wrong about Eiseman. Throughout his brief, requester misapplies the Eiseman case. (Br. at 12, 20.) That decision does not, as requester claims, stand for the proposition that the “financial record” provision always must be broadly construed. The Supreme Court never rendered any such holding in that case. Requester’s discussion betrays a misunderstanding of the context and holding of that case.6 As the Supreme Court acknowledged in Eiseman, that case presented a highly unique, fact-specific issue with “deeply mixed” policy considerations. Dep’t of Pub. Welfare v. Eiseman, 125 A.3d 19, 31 (Pa. 2015). The case necessarily has narrow application outside of the 5 Even if the Court somehow decides to endorse OOR’s rationale, given the retroactive risks created for contractors, the Court should make any such decision operable on a forward-looking basis, so as to protect the contracting community from the unfair surprise of a retroactive decision mandating disclosure of their financials. A forward-looking decision also is appropriate because the OOR’s naïve approach would require a radical alteration in the Commonwealth’s contracting practices across all agencies. 6 The undersigned was counsel for two of the parties to Eiseman. - 13 - context in which it was decided. There, the Court held that the “financial record” provision applied with respect to certain rates of payment in the HealthChoices program. The Court gave two reasons for that decision: (1) because the documents in question were required to be submitted for government approval; and (2) the documents in question depicted rates of payment that could be traced to government funds. Id. at 30-32. Neither of these two key determinative factors in Eiseman are at play here. First, there was no legal requirement for the GTL Financial Information to be submitted for agency approval – a fact requester has made exceedingly clear. So instead of showing Eiseman’s relevance, requester actually has given the Court a reason to distinguish it. Second, the GTL Financial Information does not have anything to do with the payment of government money, and hence never could be characterized as a government “financial record” (i.e., a document showing how government money is being spent). The GTL Financial Information shows only GTL’s internal financial picture. In fact, neither of the relevant contracts between the Department and GTL - 14 - involve the payment of government money. Both contracts are commission-based contracts that generate revenue for the Commonwealth. Neither contract involves spending any government money. The Eiseman case therefore is inapplicable here, and thus it does no support requester’s argument. 4. Requester also is wrong about Schackner. Requester is similarly off-base in his convoluted characterization of West Chester University v. Schackner, 124 A.3d 382 (Pa. Commw. 2015). (Br. at 21-23.) Contrary to requester’s claim, this Court did, in fact, reject the OOR’s approach to section 708(c) in Schackner. The OOR has attempted to perpetuate that same approach in this case. Since the Court rejected it in Schackner, it should do so here as well. In Schackner, the requester sought a copy of a contract between a lobbying firm, Bravo, and its client, West Chester University. Id. at 385. Bravo’s proposal with regard to its legislative strategy was attached to that contract. Id. at 387. Bravo claimed that proposal was protected by Right-to-Know Law exemption 11, which covers trade - 15 - secrets and confidential proprietary information. Id. at 386. The OOR held, among other things, that the proposal was “part of the contract” and hence “must be disclosed in its entirety as a financial record under section 708(c).” Id. Bravo appealed to this Court. This Court reversed the OOR on the section 708(c) issue, explaining that “we disagree with the OOR that information regarding a legislative strategy must be disclosed just because it is part of the contract.” Id. at 392. Because the “financial record” provision therefore did not apply to defeat Bravo’s claimed exemption, the Court continued on to analyze whether Bravo had satisfied its burden of proof under exemption 11. Ultimately, the Court held Bravo had failed to do so. In sum, then, Schackner can only be understood as rejecting the OOR’s approach to section 708(c), which it applied again here. Indeed, had the Court endorsed the OOR’s reading of section 708(c), then it would not have analyzed Bravo’s claimed exemption. Instead, the Court would have concluded that the Bravo proposal was “part and parcel of the contracts” (just as the OOR concluded here) and then stopped its analysis at that point (just as the OOR did here), since Bravo could not have claimed the exemption in that event. - 16 - 5. GTL did offer an appropriate reading of 708(c). Finally, requester claims “GTL does not offer any alternative reading of section 708(c).” (Br. at 23.)7 Not true. On page 22 of its opening brief, GTL offered this construction of the term “contract” in the “financial record” provision: [A] suitable reading of “contract” is that it covers only the actual terms and conditions found in the contract documents themselves – not the ancillary appendices and attachments that are prepared prior to and separately from the contract, and serve mainly as cross-references for statements contained in the contract documents. In other words, GTL suggests that “contract” in this context should be limited to the actual terms and promises made between the parties. The concept should exclude the ancillary attachments and materials prepared in advance of contract formation, including the due diligence materials shared between the parties, like the contractor’s financials.8 7 Oddly, on the very next page of his brief, right after claiming GTL does not offer a construction of section 708(c)… requester criticizes GTL’s construction of section 708(c). 8 While requester insists that a contractor’s financials should be disclosed because they are “instrumental” or “germane” to contract performance, (Br. at 31), these materials are only back-up material for the actual promises contained in the contract document itself. Requester fails to explain why it is necessary to obtain (footnote continued on next page) - 17 - This application of the term “contract” fully harmonizes the competing interests. Agencies will be able to continue their timehonored contracting practices, which enable them to enforce contractor obligations. The contractors, for their part, will remain able to protect their financials under exemption 26 (as well as their confidential information under exemption 11) – even if they are attached to the contract by agency requirement or request. And the requesters will be able to obtain the actual contract terms, thus fulfilling the Right-toKnow Law objective of empowering the public to scrutinize government actions by showing the essential terms agreed upon by an agency. The balance of these competing interests already has been achieved in this case. The Department produced 3,195 pages to requester, and provided him with every material contract term for each of the inmate telephone and kiosk contracts that interest him. Requester does not claim – and could never claim – that he has been deprived of a material term of either contract, or that he is missing (footnote continued from previous page) the back-up material for a contractual promise when the document showing the promise already is subject to disclosure. - 18 - information necessary to understand how these contracts operate. At the same time, to this point, GTL has been able to protect its sensitive financials. This Court therefore should preserve the current state of affairs. It can, and should, do so by reversing the OOR’s order for disclosure of the GTL Financial Information. C. This is not the place for a crusade. Finally, a brief note is warranted in response to requester’s repeated ad hominem attacks on GTL in his brief, as well as his repeated reference to matters outside of the record, all of which plainly violate the Rules of Appellate Procedure. Requester’s angry brief is loaded with inflammatory and unnecessary commentary aimed at prejudicing the Court against GTL. Perhaps the worst of these is the over-the-line accusation that GTL pays “kickbacks” to governments. This of course is an accusation that GTL is engaged in criminal activity. Requester’s tactics are surprising, as GTL has been careful in this case to describe requester in respectful terms. In any event, as the Court is well aware, requester’s distracting commentary has no place in a Right-to-Know Law case. The analysis does not turn on how - 19 - effectively one can demonize his adversary. Requester knows this. But he took this tact anyway. With respect to requester’s many improper references to matters outside the record,9 it will suffice to say simply that GTL vigorously disputes the notion that there is anything untoward about the method of contracting the Department employed for the inmate telephone and kiosk contracts. These contracts were formed as a result of Department-initiated processes seeking competing bids using a business model of the Department’s choosing. These open procurement processes were conducted in compliance with applicable laws, regulations and procedures. No contractor had the power to dictate to the Department the structure and terms of the contracts. GTL was selected as the Department’s counterparty because it offered terms that were in the Commonwealth’s best interests. And 9 For example, requester carefully selects portions of certain FCC proceedings in an effort to turn the Court against GTL, even though he admits that GTL has challenged aspects of those proceedings, and that those proceedings are ongoing. (Br. at 14-15 & n.12.) Requester apparently believes it is acceptable to present the Court with a slanted picture of incomplete collateral proceedings. Requester also appears to make some type of reference to purported public disclosure of GTL’s alleged financials from some other source. Even assuming the truth of that extra-record assertion, it has no impact on the analysis here, and thus can be safely ignored by the Court. - 20 - GTL charges Department-approved rates that are consistent with prevailing rates at similar institutions across the country. In short: there is nothing inappropriate in how the Department chose to procure inmate telephone or kiosk services, in how the Department chose to contract with GTL, or in how GTL carried out its obligations under the contracts. In the end, requester’s repeated, prejudicial attacks say more about the merits of requester’s legal position than they do about GTL. Requester, apparently recognizing the weakness of his legal arguments, must have felt it necessary to resort to name-calling. Whatever the case, GTL simply wishes to remind the Court that requester’s unfortunate commentary must be ignored. - 21 - IV. CONCLUSION For the foregoing reasons, as well as those in its principal brief, petitioner, Global Tel*Link Corporation, respectfully requests that this Honorable Court reverse the August 12, 2015 Final Determination of the Office of Open Records as to its determination with respect to the GTL Financial Information, and further order that no further action must be taken by the Pennsylvania Department of Corrections with respect to the GTL Financial Information. Respectfully submitted, Dated: April 18, 2016 /s/ Karl S. Myers Karl S. Myers Pa. Id. No. 90307 STRADLEY RONON STEVENS & YOUNG, LLP 2600 One Commerce Square Philadelphia, PA 19103 (215) 564-8193 (215) 564-8120 (facsimile) Attorneys for petitioner, Global Tel*Link Corporation - 22 - CERTIFICATE OF COMPLIANCE I, Karl S. Myers, certify that this brief complies with the length limitation of Pa.R.A.P. 2135 because this brief contains 4,190 words, excluding the parts of the brief exempted by Pa.R.A.P. 2135. /s/ Karl S. Myers Karl S. Myers PROOF OF SERVICE I hereby certify that I am this day serving the foregoing via the Court’s electronic filing system upon the person indicated below: Arleigh P. Helfer, III, Esquire Schnader Harrison Segal & Lewis LLP 1600 Market Street, Suite 3600 Philadelphia, PA 19103 Counsel for Respondents Dated: April 18, 2016 /s/ Karl S. Myers Karl S. Myers # 2798426 Attachment 10