            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pennsylvania Department of Health,              :
                 Petitioner                     :
                                                :
               v.                               :
                                                :
Wallace McKelvey and PennLive,                  :   No. 1372 C.D. 2017
                Respondents                     :   Submitted: June 22, 2018



BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                             FILED: September 27, 2018


               The Pennsylvania Department of Health (Department) petitions for
review of the August 31, 2017 Final Determination of the Office of Open Records
(OOR) granting the request of Wallace McKelvey, a reporter for PennLive,
(Requester) and ordering the Department to provide all responsive records within 30
days. We affirm.
               On May 9, 2017, Requester submitted a request to the Department
pursuant to the Right-to-Know Law (RTKL)1 seeking “[t]he names, job titles and
departments of the panel that is reviewing and scoring applications for
grower/processor and dispensary permits under the medical marijuana program[]”
(Request). Reproduced Record (R.R.) at 1a; see also R.R. at 5a; Final Determination

      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
at 1, R.R. at 36a. The Department denied the Request, stating that the requested
information is exempt from disclosure under Pennsylvania regulations governing the
medical marijuana program. Requester appealed to the OOR. 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. Final Determination at 2, R.R. at 37a.
The Department responded, reiterating its position that the information was exempt
from disclosure under its regulations, and arguing that the information was also
exempt because disclosure would threaten the personal security of the panel
members.2 See id.; R.R. at 16a-20a. The Department also submitted the affidavit of
John Collins (Collins), Director of the Office of Medical Marijuana. R.R. at 24a-
25a.       Subsequently, the OOR requested a supplemental affidavit from the
Department to address whether all applications are reviewed by all panel members
of a single review panel. R.R. at 28a; see Final Determination at 2, R.R. at 37a. The
Department replied, stating that it could not directly address the roles of individual
reviewers, but it offered a supplemental affidavit from Collins (Affidavit) in an
attempt to provide responsive information. R.R. at 28a; see Final Determination at
2, R.R. at 37a.
                After review, the OOR rejected the Department’s argument that the
requested information was exempt under the Department’s regulation, 28 Pa. Code
§ 1141.35(c), which at the relevant time provided, “[t]he applicant may not obtain
the names or any other information relating to persons reviewing applications,
including a reviewer’s individual application reviews.” See Final Determination at
4-6. The OOR noted that the Medical Marijuana Act (Act)3 and its implementing

       2
       The Department is permitted to assert additional grounds for denial on appeal before the
OOR. See Levy v. Senate of Pa., 65 A.3d 361, 383 (Pa. 2013).
       3
           Act of April 17, 2017, P.L. 84, 35 P.S. §§ 10231.101 – 10231.2110.
                                                2
regulations make certain information expressly confidential, and that the regulation
on which the Department relies is not contained within any confidentiality provision,
but, rather, is contained within a section addressing the denial of permits under the
Act. Id. The OOR concluded that the regulation’s express terms make application
reviewer information confidential only with respect to: (i) an applicant for a permit;
and (ii) applicants whose applications have been denied. Id. at 5.
             The OOR recognized that an interpretation which prohibits only denied
applicants from obtaining application reviewer information, but allows other
members of the public to obtain such information, could produce an absurd result
because a denied applicant could easily obtain such information through a third
party. Id. The OOR reasoned, however, that if not all panel members are responsible
for reviewing all applications, it is possible to reconcile Section 1141.35(c) with the
confidentiality provisions found in Section 1141.22 of the Department’s regulations,
28 Pa. Code § 1141.22, which do not make review panel information confidential.
In particular, an applicant might be able to determine panel members but would not
be aware of the individual panel members who denied an application. The OOR
noted that the Department refused to answer the OOR’s questions concerning
whether the entire panel of reviewers or a subset of the panel reviewed each
application, and therefore, the OOR inferred that not all panel members review each
application. Final Determination at 5-6.
             The OOR also rejected the Department’s argument that disclosure of
the information would threaten personal security. Id. at 6. The OOR noted that the
Department’s only evidence in support of this exemption was Collins’ Affidavit and
concluded that it was too conclusory and speculative to support the claimed
exemption. Id.


                                           3
              Accordingly, the OOR ordered the Department to provide all
responsive records to Requester within 30 days. The Department now petitions this
Court for review of the OOR’s Final Determination.4
              With respect to the regulation under which the Department claims the
records are exempt, 28 Pa. Code § 1141.35(c), we note that after the Department
filed its appeal with this Court and both parties briefed the matter, the Department
issued amended temporary regulations amending, among other things, Chapter 1141
of Title 28 of the Pennsylvania Code, which includes the regulation at issue.5 See
48 Pa.B. 2767 (May 12, 2018).
              This Court issued an order on May 17, 2018, directing the parties to file
supplemental briefs “addressing the effect, if any, of the amended temporary
regulations” on the pending matter, and the parties complied. In its supplemental
brief, the Department argues that the changes in its temporary regulations have no
impact on this case, one of the reasons being that the regulations were amended
subsequent to Requester’s Request and the amended regulatory section was not


       4
          In reviewing a final determination of the OOR involving a Commonwealth agency, this
Court’s standard of review is de novo and our scope of review is broad or plenary. Bowling v.
Office of Open Records, 75 A.3d 453, 467-68 (Pa. 2013).
       5
         The amended regulations were published May 12, 2018, effective May 17, 2018. 48
Pa.B. 2767 (May 12, 2018). Relevant here, the regulation previously promulgated at 28 Pa. Code
§ 1141.35(c) has been deleted. Additionally, Section 1141.22(b) was amended to provide:

              The following information is considered confidential, is not subject
              to the Right-to-Know Law . . .
                       ...
                    [t]he names and any other information relating to persons
                   reviewing permit applications, including a reviewer’s
                   individual permit application reviews and notes.

48 Pa.B. 2771 (May 12, 2018); see also 28 Pa. Code § 1141.22(b)(11).

                                               4
made retroactive. We agree with the Department that the amended regulations do
not affect the disposition of this case for that reason.


             It is an undisputed rule of statutory construction that
             statutes, other than those affecting procedural matters,
             must be construed prospectively except where the
             legislative intent that they shall act retrospectively is so
             clear as to preclude all question as to the intention of the
             legislature. . . . This principle has been promulgated as law
             by our legislature in 1 Pa. C.S. § 1926, which provides:

                 No statute shall [be] construed to be retroactive
                 unless clearly and manifestly so intended by the
                 General Assembly.

             This rule has been applied to the regulations of
             administrative agencies.


R & P Servs., Inc. v. Dep’t of Revenue, 541 A.2d 432, 434 (Pa. Cmwlth. 1988)
(citations omitted). Here, the amended temporary regulations at issue do not affect
procedural matters, and, as the Department points out, they were not made
retroactive. Accordingly, in deciding this matter, we will apply the temporary
regulations as they existed on the date of Requester’s Request, and our decision will
not apply or interpret the amended temporary regulations.
             A principle underlying the RTKL is to allow citizens to scrutinize
government activity and increase transparency. SWB Yankees LLC v. Wintermantel,
45 A.3d 1029, 1034, 1050 (Pa. 2012) (stating the RTKL “is remedial legislation
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” (quoting Bowling v. Office of Open Records, 990 A.2d


                                            5
813, 824 (Pa. Cmwlth. 2010), aff’d, 75 A.3d 453 (Pa. 2013))). To that end, the
RTKL provides that records in the possession of an agency are presumed to be
public. Section 305(a) of the RTKL, 65 P.S. § 67.305(a). That presumption does
not apply, however, if: “(1) the record is exempt under Section 708; (2) the record is
protected by a privilege; or (3) the record is exempt from disclosure under any other
Federal or State law or regulation . . . .” 65 P.S. § 67.305(a). “Exemptions from
disclosure must be narrowly construed due to the RTKL’s remedial nature . . . .”
Office of Governor v. Scolforo, 65 A.3d 1095, 1100 (Pa. Cmwlth. 2013). “An agency
bears the burden of proving, by a preponderance of the evidence, that a record is
exempt from disclosure under one of the enumerated exceptions.”6 Brown v. Pa.
Dep’t of State, 123 A.3d 801, 804 (Pa. Cmwlth. 2015); see Section 708(a)(1) of the
RTKL, 65 P.S. § 67.708(a)(1).
               Here, the Department argues that the records are exempt under the
Department’s regulation at 28 Pa. Code § 1141.35(c), which prohibits disclosure of
the names or any other information relating to persons reviewing applications, and
under the personal security exemption in Section 708(b)(1)(ii) of the RTKL, 65 P.S.
§ 67.708(b)(1)(ii).


               1. Whether the Records are Exempt from Disclosure under the
                  Department’s Regulations
               The Department first argues that the information is exempt under its
regulation, 28 Pa. Code § 1141.35(c), and that the OOR should have given deference
to the Department’s interpretation of its own regulation. The Department maintains
that the plain language of its regulation prohibits disclosure. The Department further

       6
         “A preponderance of the evidence standard, the lowest evidentiary standard, is
tantamount to a more likely than not inquiry.” Delaware County v. Schaefer ex rel. Phila. Inquirer,
45 A.3d 1149, 1156 (Pa. Cmwlth. 2012).
                                                6
argues that the OOR erroneously concluded that the regulation only prohibits
applicants who had been denied permits from obtaining the information, thereby
unduly restricting the application of the regulation to those who have submitted an
application. The Department also argues disclosure of the information would
produce an absurd result because those who are prohibited from obtaining the
information could simply have a third party obtain the information and then provide
it to an applicant. The Department warns that such subterfuge is already being
attempted and maintains that such machinations would eviscerate the purpose of the
regulation and diminish the Department’s ability to preserve the integrity of the
scoring process by limiting improper outside influences. The Department further
points out that Requester is a reporter for PennLive and therefore has the ability to
publish the information, thereby making it available to all applicants, which is
prohibited and which could jeopardize the integrity of the process. The Department
points out that, as stated in Collins’ Affidavit, it has not completed the permitting
process and intends to use the same review panel for future permitting; therefore, the
identities of the panel must remain confidential from future applicants.          The
Department maintains that if it is required to construct a second review panel, there
would likely be delays in granting permits and, thus, getting medical marijuana into
the hands of patients, which is inconsistent with the General Assembly’s mandate
for prompt implementation of the Act.
             As stated, records of a government agency are presumed to be public
and subject to disclosure. See 65 P.S. § 67.305(a). At the time of Requester’s
Request, both the Act and the Department’s regulations contained provisions which
provided that certain information is considered confidential and not subject to the
RTKL. See Sections 302(a) and 701(c) of the Act, 35 P.S. §§ 10231.302(a) &


                                          7
10231.701(c); 28 Pa. Code §§ 1131.6 & 1141.22(b) (2016). However, none of those
provisions makes information regarding application reviewers confidential and
exempt from the RTKL.7
               Nonetheless, the Department claims the information is exempt under its
regulation at 28 Pa. Code § 1141.35(c), which at the relevant time provided, “[t]he
applicant may not obtain the names or any other information relating to persons
reviewing applications, including a reviewer’s individual application reviews.” 28
Pa. Code § 1141.35(c)(3) (2016).               At the time of Requester’s Request, the
Department’s regulations defined applicant as “[a] person who wishes to submit or
submits an application to the Department for a permit to operate as a
grower/processor or dispensary, or both, under the act and this part.” 28 Pa. Code §
1141.21.
               The plain language of 28 Pa. Code § 1141.35(c) applies only to
“applicants.” The Department has failed to establish that Requester “wishes to
submit” or “submit[ted]” a permit application to the Department and, thus, falls
within that definition. Consequently, under the plain language of the regulation,
Requester does not fall within the group to whom the information may not be
released.8 Nonetheless, the Department points out that Requester is a reporter and
speculates that he will publish the information to those applicants whose permit
applications have been denied. While we acknowledge the possibility that the
Department’s prediction might come to fruition, where the words of the regulation

       7
         The temporary regulation concerning confidentiality has been amended to include
reviewer information. See supra note 5. However, as stated, the amended temporary regulations
do not apply to the matter sub judice.
       8
          Thus, while we interpret this provision to apply to all applicants rather than only denied
applicants, as the OOR stated, we agree with the OOR that Requester cannot be denied the records.

                                                 8
are plain, we may not disregard the letter of it under the pretext of pursuing its spirit.
See Section 1921(b) of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1921(b);
Pa. Dep’t of Corr./State Corr. Inst.-Somerset v. Workers’ Comp. Appeal Bd.
(Kirchner), 805 A.2d 633, 635 (Pa. Cmwlth. 2002) (stating rules of statutory
construction apply to regulations as well as statutes). Moreover, had the Department
intended to restrict those beyond “applicant[s]” from obtaining reviewer
information, it could have explicitly said so.9 To adopt the interpretation that the
Department advocates here would require this Court to insert additional language
into the regulation or otherwise rewrite the regulation. We may not do that. Further,
because the Department’s interpretation is inconsistent with the plain language of
the regulation, we reject the Department’s argument that its interpretation of its
regulation is entitled to deference. See Lancaster County v. Pa. Labor Relations Bd.,
94 A.3d 979, 986 (Pa. 2014) (stating that an administrative agency’s interpretation
is to be given controlling weight unless it is inconsistent with the statute itself or the
statute is unambiguous); Seeton v. Pa. Game Comm’n, 937 A.2d 1028, 1037 (Pa.
2007) (stating deference to an agency’s interpretation of a statute never comes into
play when the statute is clear and recognizing the dangers of deferring to
interpretations developed in anticipation of litigation).
               Additionally, even assuming for the sake of argument that the words of
the regulation were not explicit, thereby making it appropriate for this Court to look
beyond its language and consider factors such as the consequences of the OOR’s

       9
          For example, we note that elsewhere in its regulations, the Department employs the term
“person” which is seemingly all encompassing. See, e.g., 28 Pa. Code § 1141.23 (limiting number
of permits issued to one person). The regulations define person as “[a] natural person, corporation,
foundation, organization, business trust, estate, limited liability company, licensed corporation,
trust, partnership, limited liability partnership, association or other form of legal business entity.”
28 Pa. Code § 1141.21.

                                                  9
interpretation,10 we agree with the OOR that its interpretation does not lead to an
absurd result. The OOR acknowledged that if the public at large can obtain
application reviewer information, a denied applicant could easily obtain that
information through the use of a third party. Final Determination at 5. However,
there is nothing in the record to establish that the release of the information would
identify the specific panel member or members who reviewed the application and
denied it. As such, there is no absurd result here that would compel this Court to
interpret the Department’s regulation differently.
               Accordingly, we agree with the OOR that the Department did not carry
its burden to establish that the records are exempt from disclosure under its
regulation at 28 Pa. Code § 1141.35(c).


              2. Whether the Records are Exempt from Disclosure under the
              Personal Security Exemption
               Under the exemption known as the personal security exemption, the
RTKL protects from disclosure “[a] record, the disclosure of which … would be
reasonably likely to result in a 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 exception applies, an agency must show: (1) a ‘reasonable likelihood’ of (2)
‘substantial and demonstrable risk’ to a person’s security.” Governor’s Office of
Admin. v. Purcell, 35 A.3d 811, 820 (Pa. Cmwlth. 2011). A substantial and
demonstrable risk means a risk that is real and apparent. See id. Additionally, the




       10
          See Section 1921(c)(6) of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1921(c)(6)
(stating when the words of a statute are not explicit, the intention of the General Assembly may be
ascertained by considering, among other things, the consequences of a particular interpretation);
Kirchner, 805 A.2d at 635 (applying statutory construction rules to regulations).
                                               10
likelihood requires more than speculation. See Purcell, 35 A.3d at 820 (stating more
than mere conjecture is needed).
             In proceedings before the OOR, affidavits are an acceptable form of
evidence, and statements contained in an affidavit can constitute sufficient evidence
to sustain the agency’s burden of proof. See Moore v. Office of Open Records, 992
A.2d 907, 909 (Pa. Cmwlth. 2010). However, “[t]his Court consistently holds that
speculation and conclusory statements in an affidavit do not show a reasonable
likelihood of a threat to security.” Carey v. Pa. Dep’t of Corr., 61 A.3d 376, 376
(Pa. Cmwlth. 2013); see also Scolforo, 65 A.3d at 1103 (holding conclusory
affidavits are insufficient); Delaware County v. Schaefer ex rel. Phila. Inquirer, 45
A.3d 1149, 1158 (Pa. Cmwlth. 2012) (stating general, broad-sweeping conclusions
are insufficient).
             To sustain its burden that the record sought here is exempt, the
Department offered only the affidavit of Collins. The OOR determined that this
evidence was too conclusory and speculative and, therefore, did not support the
claimed exemption. We agree.
             In his affidavit, Collins stated that the privacy and confidentiality of the
review panel must be maintained. Affidavit ¶ 2, R.R. at 31a-32a. He explained that
because the Department has not yet completed the application permitting process
and intends to use the same review panel to review future applications, the identity
of the reviewers must be protected from future applicants. Affidavit ¶ 6, R.R. at 32a.
He further stated that Requester requested the information in his capacity as a
reporter for PennLive, and therefore, it is reasonable to infer that Requester intends
to publish the names of review panel members. Affidavit ¶ 7, R.R. at 32a. Collins
stated that protecting the identities of the review panel members is “imperative to


                                          11
ensure the integrity of the program” and that “[a]llowing current and future
applicants access to this information may expose the Review Panel to a plethora of
issues including, but not limited to bribes, inducements, threats, harassment and
undue influence.” Affidavit ¶ 9, R.R. at 33a.
                 Collins’ statement that disclosure of the information “may expose the
Review Panel to a plethora of issues” is conjecture and simply too speculative.
Additionally, the standard to establish the exemption is that the disclosure is
“reasonably likely to result in a substantial and demonstrable risk of physical harm
to or the personal security of an individual[,]”11 not that it may result in such.
Consequently, the OOR did not err in concluding that Collins’ Affidavit was too
conclusory and speculative to support the claimed exemption.
                 Accordingly, for the foregoing reasons, we affirm the OOR’s
determination that the Department must provide all responsive records to Requester
within 30 days.12



                                               __________________________________
                                               CHRISTINE FIZZANO CANNON, Judge




       11
            See 65 P.S. § 67.708(b)(1)(ii) (emphasis added); Purcell, 35 A.3d at 820.
       12
          The request date defines the universe of responsive documents, and the Department only
has the duty to provide records existing on or before that date. See Uniontown Newspapers, Inc.
v. Pa. Dep’t of Corr., 151 A.3d 1196, 1205 (Pa. Cmwlth. 2016). Records post-dating the Request
are not responsive regardless of their relevance to the subject matter. Id. at 1204-05.
                                                 12
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pennsylvania Department of Health,     :
                 Petitioner            :
                                       :
            v.                         :
                                       :
Wallace McKelvey and PennLive,         :   No. 1372 C.D. 2017
                Respondents            :


                                 ORDER


            AND NOW, this 27th day of September, 2018, the Final Determination
of the Office of Open Records, dated August 31, 2017, is AFFIRMED.



                                     __________________________________
                                     CHRISTINE FIZZANO CANNON, Judge
