            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Broomall Operating Company, LP                 :
d/b/a Broomall Rehabilitation and              :
Nursing Center,                                :
                  Petitioner                   :
                                               :
               v.                              :
                                               :
William Murray,                                :    No. 1685 C.D. 2017
                       Respondent              :    Argued: November 13, 2018



BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                             FILED: December 14, 2018

               Broomall Operating Company, LP d/b/a Broomall Rehabilitation and
Nursing Center (Broomall) petitions for review of the portion of the October 17,
2017 final determination of the Pennsylvania Office of Open Records (OOR), which
concluded that the appeal submitted by William Murray (Murray) satisfied Section
1101(a)(1) of the Right-to-Know Law (RTKL),1 65 P.S. § 67.1101(a)(1), and that
neither the Pennsylvania Department of Health (DOH) nor Broomall had established
that the withheld records are exempt as confidential proprietary information under
Section 708(b)(11) of the RTKL, 65 P.S. § 67.708(b)(11). Petition for Review at 7;
Reproduced Record (R.R.) at 527a-28a & 537a. Broomall requests that this Court


      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101–67.3104.
reverse the final determination of the OOR and find in accordance with DOH’s
decision to withhold the disputed documents.2 Petition for Review at 9. Upon
review, we affirm.
               On November 21, 2013, Broomall submitted a nursing home license
application to DOH, seeking to change ownership of the entity to Broomall
Operating Company, LP. R.R. at 230a. On December 7, 2016, Murray, an attorney
prosecuting two pending personal injury lawsuits against Broomall in the Court of
Common Pleas for Delaware County, Pennsylvania, submitted a records request to
DOH under the RTKL. R.R. at 10a; Broomall’s Petition for Review at 2, ¶ 3.
Murray’s request sought, in relevant part, the following:


               [Item No. 2] A copy of all correspondence by and between
               [DOH] and the Facility[3] (and/or the Facility’s owners,
               agents, and/or attorneys), including all attachments
               thereto, pertaining to changes in the Facility’s ownership
               during the period of January 1, 2010 through and including
               the present.

               [Item No. 3] A copy of all agreements and contracts
               (including but not limited to management agreements,
               operations transfer agreements, lease agreements,
               administrative   services    agreements,   settlement

       2
         DOH filed an amicus curiae brief in support of Broomall, arguing that the OOR’s final
determination “requires disclosure of . . . confidential proprietary information” and asserting its
concern that “[i]f the OOR’s decision stands, applicants will fear that the information and
documentation requested will be released in response to Right to Know Law (RTKL) requests”
and “will withhold information that is vital for [DOH] to determine whether the applicant can be
entrusted with a license, thereby jeopardizing [DOH’s] entire health facility licensure process.”
Brief of Amicus Curiae Pennsylvania Department of Health at 4.

       In his request, Murray specified that the “Facility” refers to both THI of Pennsylvania at
       3

Broomall, LLC, d/b/a Broomall Rehabilitation and Nursing Center and Broomall Operating
Company, LP, d/b/a Broomall Rehabilitation and Nursing Center. R.R. at 11a.

                                                2
               agreements, and other contracts of any kind) supplied to
               [DOH] by the Facility (and/or the Facility’s owners,
               agents, and/or attorneys), including all attachments
               thereto, during the period of January 1, 2010 through and
               including the present.

               [Item No. 4] A copy of all correspondence received by
               [DOH] from the Facility (and/or the Facility’s owners,
               agents, and/or attorney), including all attachments thereto,
               and which pertain to the period of January 1, 2010 through
               and including the present.[4]

R.R. at 11a. Broomall avers that the contested records “comprise a single document,
that only DOH and Broomall possess, containing detailed information about the
structure, management and operations of [Broomall] and its affiliates nationwide,”
which Broomall refers to as the “Submission” (Submission). Broomall’s Brief at 6
(citing R.R. at 492a). Broomall provided the Submission to DOH in 2013 in
response to a ten-point questionnaire as part of its health care facility license
application, which was necessitated by a change in ownership of the facility. Petition
for Review at 3-4, ¶ 5; see also R.R. at 275a. By letter dated January 13, 2017, DOH
granted in part and denied in part Murray’s request. R.R. at 18a. DOH disclosed
records responsive to Items Nos. 2, 3 and 4 of Murray’s request, subject to certain
redactions and exemptions from disclosure under the RTKL. Id. DOH redacted
certain information, including individual home addresses, signatures, email
addresses, and Medicaid/Medicare provider numbers pursuant to Section
708(b)(1)(ii), (b)(5) and (b)(6) of the RTKL. Id. DOH also withheld certain

       4
          Item No. 1 requested “[a] copy of the checks submitted to [DOH] by or on behalf of the
Facility for payment of the Facility’s licensure fees during the period of January 1, 2010 through
and including the present.” R.R. at 11a. DOH denied this request, because it could locate “no
records responsive to this portion of [the] request in its possession, in its custody or under its
control.” R.R. at 19a; see also R.R. at 148a-49a.

                                                3
documents as confidential and proprietary to Broomall pursuant to Section
708(b)(11) of the RTKL. R.R. at 19a. In its letter, DOH instructed Murray that an
appeal should include “[t]he reason why the agency is wrong in its reasons for saying
that the information redacted or withheld is not public (a statement that addresses
any ground stated by the agency for the denial).” Id.
                On January 25, 2017, Murray appealed DOH’s decision to the OOR.
R.R. at 4a-5a. Among other things, Murray argued that DOH improperly withheld
documents that are neither confidential nor proprietary under Section 708(b)(11) of
the RTKL; that DOH “failed to provide any factual or legal support for denying
access to the responsive records,” such that DOH failed to meet its burden to
establish that the records are exempt from disclosure; and that the withheld records
constitute financial records to which the Section 708(b)(11) exemption does not
apply.5 R.R. at 4a-5a (emphasis in original).
                 On February 15, 2017, Broomall submitted a request to participate in
the appeal pursuant to Section 1101(c)(1) of the RTKL, 6 which the OOR granted.
R.R. at 523a. DOH filed its response on February 17, 2017, which included an
exemption log identifying the documents it withheld and the basis for withholding

       5
          Regarding this last argument, the OOR determined that the withheld records do not
constitute financial records under the RTKL, and Murray does not contest this portion of the
OOR’s final determination on appeal to this Court. R.R. at 533a.
       6
           Section 1101(c)(1) of the RTKL provides:

       A person other than the agency or requester with a direct interest in the record
       subject to an appeal under this section may, within 15 days following receipt of
       actual knowledge of the appeal but no later than the date the appeals officer issues
       an order, file a written request to provide information or to appear before the
       appeals officer or to file information in support of the requester’s or agency’s
       position.

65 P.S. § 67.1101(c)(1).
                                                4
them. R.R. at 59a-63a, 127a-36a, 187a-89a & 254a-56a. On March 10, 2017,
Broomall submitted a position statement, arguing that the requested records are
exempt from disclosure pursuant to Section 708(b)(11) and that Murray’s appeal
was procedurally deficient under Section 1101(a) of the RTKL. R.R. at 523a-24a.
Broomall submitted with its position statement the sworn attestations of Annaliese
N. Impink, who had supervised the filing of Broomall’s 2013 licensure application,
and Leon E. LeBreton, Chief Executive Officer of the Lancaster Group, LLC, which
provides consulting services to long-term care providers. R.R. at 194a & 200a. Both
Impink and LeBreton had reviewed the withheld documents. R.R. at 194a & 201a.
Impink attested to the unique nature of Broomall’s Submission and her opinion that
it contained confidential information. LeBreton provided an “expert attestation”
regarding the competitive nature of Broomall’s local market and his opinion that
Broomall would suffer substantial injury if the requested records became publicly
accessible. R.R. at 201a-02a; see also Broomall’s Brief at 8. On March 14, 2017,
Murray requested permission to reply to the responses submitted by DOH and
Broomall, which he claimed “introduced additional—and previously undisclosed—
material into the record for the first time,” specifically referencing the exemption log
and attestations. R.R. at 226a-27a. The OOR granted Murray’s request. R.R. at
228a. On March 24, 2017, Murray submitted a reply, contending that his appeal to
the OOR was adequate under Section 1101(a) of the RTKL and that DOH
improperly withheld documents that are neither confidential nor proprietary. R.R.
at 231a-34a. Neither Broomall nor Murray requested a hearing before the OOR.
R.R. at 526a.
             The OOR issued its final determination on October 17, 2017. R.R. at
521a-45a. The OOR determined that Murray’s appeal was sufficient under Section


                                           5
1101(a)(1) of the RTKL. R.R. at 527a-28a. The OOR also found that “neither
[DOH] nor [Broomall] has proven that the withheld records are exempt under
Section 708(b)(11)” for containing confidential proprietary information. R.R. at
533a-37a. The OOR determined that DOH failed to meet its burden to prove that
the requested records were exempt from disclosure, because the attestations
provided by Broomall were premised upon conclusory statements. R.R. at 537a.
Broomall then filed a petition for review with this Court.7
               We begin with an overview of the RTKL. “The objective of . . . [this]
[l]aw . . . is to empower citizens by affording them access to information concerning
the activities of their government.” SWB Yankees L.L.C. v. Wintermantel, 45 A.3d
1029, 1042 (Pa. 2012). Further, the RTKL is remedial in nature and is “designed to
promote access to official government information in order to prohibit secrets,
scrutinize the actions of public officials and make public officials accountable for
their actions.” Pa. Dep’t of Educ. v. Bagwell, 114 A.3d 1113, 1122 (Pa. Cmwlth.
2015) (citation omitted). “[C]ourts should liberally construe the RTKL to effectuate
its purpose 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.’” Barnett v. Pa. Dep’t of Pub. Welfare, 71 A.3d 399,
403 (Pa. Cmwlth. 2013).              “Consistent with the RTKL’s goal of promoting



       7
          Broomall participated in the proceedings before the OOR as a direct-interest participant.
See Section 1101(c) of the RTKL, 65 P.S. § 67.1101(c). A third party with a direct interest in the
requested records may appeal an OOR final determination to the Commonwealth Court when it
has “an independent basis under due process, outside the provisions of the RTKL, to preserve its
property interest in protecting the disclosure of its . . . confidential proprietary information . . . .
However, that right is limited to the independent basis for appeal relating to those direct
identifiable property interests.” W. Chester Univ. of Pa. v. Schackner, 124 A.3d 382, 391 (Pa.
Cmwlth. 2015).

                                                   6
government transparency and its remedial nature, the exceptions to disclosure of
public records must be narrowly construed.” Bagwell, 114 A.3d at 1122.
              Pursuant to Section 1101(a)(1) of the RTKL:

              [i]f a written request for access to a record is denied or
              deemed denied, the requester may file an appeal with the
              Office of Open Records or judicial, legislative or other
              appeals officer designated under section 503(d) within 15
              business days of the mailing date of the agency’s response
              or within 15 business days of a deemed denial. The appeal
              shall state the grounds upon which the requester asserts
              that the record is a public record, legislative record or
              financial record and shall address any grounds stated by
              the agency for delaying or denying the request.

65 P.S. § 67.1101(a)(1).
              Before this Court,8 Broomall argues that the OOR should have
dismissed Murray’s appeal for failure to comply with Section 1101(a)(1) of the
RTKL. Broomall’s Brief at 15. Broomall further asserts that the OOR erred in
concluding that Broomall failed to establish that the Submission constitutes
confidential proprietary information pursuant to Section 708(b)(11) of the RTKL.
Id. at 23.
              In support of its first argument regarding the sufficiency of Murray’s
appeal, Broomall argues that “[u]nder RTKL § 1101(a)(1), the OOR may not
consider an objection to the denial of a records request unless the objection is stated
in the requester’s appeal.” Broomall’s Brief at 15 (citing Padgett v. Pa. State Police,
73 A.3d 644, 647 (Pa. Cmwlth. 2013)). Broomall asserts that “[t]he purpose of
RTKL § 1101(a)(1) is to give an agency the opportunity to correct errors identified

       8
         “This Court’s standard of review of a final determination of the OOR is de novo and our
scope of review is plenary.” Hunsicker v. Pa. State Police, 93 A.3d 911, 913 n.7 (Pa. Cmwlth.
2014).

                                               7
by the requester in the agency’s denial decision before any further appeal is needed.
. . . Thus, an appeal that fails to specify the reasons for appeal should be dismissed
and not addressed by the OOR.” Id. Broomall contends that Murray could not
satisfy RTKL Section 1101(a)(1) merely by checking a box on the OOR Appeal
Form, which stated that the records “are not protected by any exemptions under
Section 708 of the [RTKL].” Id. at 18 (quoting R.R. at 3a). Broomall further argues
that because Murray did not claim that the records were not confidential proprietary
information, he “failed to preserve—and thus waived—any objection to DOH’s
decision.” Id.
             Murray argues that his appeal to the OOR was sufficient, because
Section 1101(a)(1) does not require a requester to “prove anything,” but instead
“merely places a burden on a requester to identify flaws in an agency’s decision
denying a request.” Murray’s Brief at 15 (quoting Barnett, 71 A.3d at 404 (emphasis
in original) (internal quotation marks omitted)).      Murray asserts that to find
otherwise “would impose an extreme burden on requestors [sic] that is not
contemplated by the RTKL or our Supreme Court’s precedent.” Murray’s Brief at
18 (citing Levy v. Senate of Pa., 65 A.3d 361, 381 (Pa. 2013) (“Section 708 places
the burden of proving an exception squarely on the agency by a preponderance of
the evidence.”)).   Further, Murray contends that DOH “simply stated that it
‘withheld documents that are confidential and proprietary to [Broomall],’” and that
this “cursory denial” was “all [he] had to work with.” Broomall’s Brief at 17
(quoting R.R. at 19a). Murray points out that, following his appeal to the OOR, the
OOR asked DOH twice to identify which of the four record requests to which the
withheld records were responsive. Murray’s Brief at 17. The OOR also ordered
DOH to produce an exemption log containing descriptions of the records made from


                                          8
persons with actual knowledge of their contents. Murray’s Brief at 18 (citing R.R.
at 418a). Murray contends that, “[g]iven these circumstances, it is unclear what
more [he] could have done to identify the flaws in [DOH’s] decision at the time of
the appeal.” Murray’s Brief at 18.
             Broomall counters that DOH’s decision to deny disclosure of the
requested records “was sufficient to give Murray notice of the basis of the denial.”
Broomall’s Brief at 17. Citing Saunders v. Department of Corrections, 48 A.3d 540
(Pa. Cmwlth. 2012), Broomall argues that on appeal to the OOR, Murray was
required to state why the requested records were not exempt under Section
708(b)(11). Broomall’s Brief at 18.
             In Saunders, this Court affirmed the OOR’s dismissal of petitioner’s
appeal from a partial denial of his records request. 48 A.3d at 542. The petitioner
had argued that the OOR erred in dismissing his appeal, because “the Department
[of Corrections (DOC)] failed to produce facts sufficient to rebut the presumption
that the records in its possession [were] public records and failed to meet its burden
to prove that the requested records [were] exempt from disclosure.” Id. at 542. The
petitioner also argued that because DOC “failed to provide a description of the
records requested, he was unable to formulate sufficiently specific objections to
[DOC’s] denial.” Id. at 543 n.4. However, we deemed this argument waived for
failure to raise it in the appeal to the OOR. Id. (citing Fort Cherry Sch. Dist. v.
Coppola, 37 A.3d 1259 (Pa. Cmwlth. 2012)). We also held that DOC’s recitation of
the relevant subsections of RTKL Section 708 was “sufficient to give [petitioner]
notice of the grounds for denial.” Id. at 542. “Once [DOC] asserted that the
requested records were exempt from disclosure under Section 708, [p]etitioner was




                                          9
required by Section 1101 to state why the records did not fall under the asserted
exemptions and, thus, were public records subject to access.” Id. at 542-43.
               Murray contends that “[DOH’s] cursory denial, which was not
supported by any rationale . . . was all [he] had to work with” on appeal to the OOR.
Murray’s Brief at 17. Unlike the petitioner in Saunders, Murray challenged the
sufficiency of the denial of his records request in his appeal to the OOR and, thus,
preserved it for consideration before this Court. R.R. at 5a.9 However, we are
guided by Saunders to find that DOH’s response provided Murray with adequate
notice of the grounds for denial by quoting the relevant portion of the RTKL—
Section 708(b)(11). See R.R. at 19a. Further, in light of Saunders, we find that
Murray’s appeal to the OOR complied with Section 1101(a)(1) of the RTKL. Unlike
the Saunders petitioner, who merely alleged that DOC failed to meet its burden that
the withheld records were exempt from disclosure, Murray cited to the particular
exemption claimed by DOH—Section 708(b)(11)—and asserted that DOH
improperly withheld documents that are neither confidential nor proprietary. R.R.
at 5a. Murray also argued that the Section 708(b)(11) exemption could not apply,
because the withheld records constitute financial records pursuant to Section
708(c).10 Thus, Murray satisfied the appeal requirements of Section 1101(a)(1) by
addressing DOH’s grounds for denying his request and stating the grounds upon
which he asserts that the withheld records are not exempt from disclosure.
               This conclusion is in accord with other precedent from this Court. In
Barnett, 71 A.3d at 405-06, we held:
       9
         In his appeal to the OOR, Murray argued that “[DOH] failed to support its denial with
any factual or legal support.” R.R. at 5a.
       10
            “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).” 65 P.S. § 67.708(c).
                                                10
             [r]equester’s OOR Appeal [did] address the reasons given
             by [the Department of Public Welfare] in denying his
             RTKL Request, and include[d] his arguments as to why
             those reasons are flawed. . . . Although Requester [did] not
             discuss any specific subsections of Section 708(b) of the
             RTKL, this [did] not render the OOR Appeal deficient.
             Requester’s statement in his OOR Appeal that the records
             are public records that “do not qualify for any exemptions
             under [S]ection 708, are not protected by privilege, and are
             not exempted under any Federal or State law or
             regulation,” [was] sufficient under these circumstances.

Broomall contends that “Barnett is inapposite because Murray’s appeal did not
address or dispute the reasons given by DOH for denying his Request pursuant to
RTKL § 708(b)(11).” Broomall’s Brief at 19 (citing R.R. at 5a-6a) (emphasis in
original). We disagree. A requester appealing to the OOR is not required “to prove
anything;” rather, Section 1101(a)(1) “merely places a burden on a requester to
identify flaws in an agency’s decision denying a request.” Dep’t of Corrections v.
Office of Open Records, 18 A.3d 429, 434 (Pa. Cmwlth. 2011) (emphasis in
original). Further, a requester’s appeal need only be “minimally sufficient” in order
to warrant review by the OOR. Padgett, 73 A.3d at 647. Thus, we find that Murray’s
appeal of DOH’s denial to the OOR complied with Section 1101(a)(1) of the RTKL.
             Broomall next argues that, “[o]n the merits, the OOR erred in
concluding that Broomall failed to show that the Submission is confidential
proprietary information.” Broomall’s Brief at 23.
             Records in the possession of a Commonwealth agency are presumed to
be public unless they are exempt under Section 708 of the RTKL, protected by a
privilege, or exempt from disclosure under any other federal or state law or judicial
order or decree. Section 305(a) of the RTKL, 65 P.S. § 67.305(a). “The burden of

                                         11
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)(1). In addition,
a direct-interest participant asserting a record is exempt from disclosure bears the
burden of proving the exemption applies. See, e.g., Global Tel*Link Corp. v. Wright,
147 A.3d 978 (Pa. Cmwlth. 2016) (holding that a third party provided evidence
sufficient to establish that an exemption under Section 708 of the RTKL precluded
disclosure of certain information provided to an agency). “A preponderance of the
evidence standard, the lowest evidentiary standard, is tantamount to ‘a more likely
than not’ inquiry.” W. Chester Univ. of Pa. v. Schackner, 124 A.3d 382, 393 (Pa.
Cmwlth. 2015). The burden of establishing an exemption under RTKL Section 708
may be met “through an unsworn attestation or a sworn affidavit.” Global Tel*Link
Corp., 147 A.3d at 980. “However, conclusory statements are not sufficient to
justify an exemption of public records.” Office of Governor v. Scolforo, 65 A.3d
1095, 1103–04 (Pa. Cmwlth. 2013). “The evidence must be specific enough to
permit this Court to ascertain how disclosure of the entries would reflect that the
records sought fall within the proffered exemptions.” See Carey v. Dep’t of Corr.,
61 A.3d 367, 375–79 (Pa. Cmwlth. 2013).
             Section 708(b)(11) of the RTKL exempts from disclosure “[a] record
that constitutes or reveals a trade secret or confidential proprietary information.” 65
P.S. § 67.708(b)(11). Section 102 defines “confidential proprietary information” as

             [c]ommercial or financial information received by an
             agency:

             (i) which is privileged or confidential; and



                                          12
               (ii) the disclosure of which would cause substantial harm
                    to the competitive position of the person that
                    submitted the information.

65 P.S. § 67.102. “In determining whether disclosure of confidential information
will cause ‘substantial harm to the competitive position’ of the person from whom
the information was obtained, an entity needs to show: (1) actual competition in the
relevant market; and, (2) a likelihood of substantial injury if the information were
released.” Dep’t of Corr. v. Maulsby, 121 A.3d 585, 590 (Pa. Cmwlth. 2015).
Additionally, “[c]ompetitive harm analysis ‘is limited to harm flowing from the
affirmative use of proprietary information by competitors. Competitive harm should
not be taken to mean simply any injury to competitive position.’” Id. (citing Watkins
v. U.S. Bureau of Customs, 643 F.3d 1189, 1194 (9th Cir. 2011)).
               In order to establish that the withheld records constituted confidential
proprietary information under the RTKL, Broomall submitted the attestation of
Annaliese N. Impink.11 Impink attested, in relevant part:

               2. In 2013, I was Senior Vice President and Chief
               Operations Counsel for SavaSeniorCare Consulting, LLC.
               In that role, I supervised SavaSeniorCare Consulting, LLC
               employees and external counsel who were responsible for
               preparing and filing, on behalf of [Broomall], a 2013
               application for licensure as a result of a change in
               ownership with the Pennsylvania Department of Health’s
               Division of Nursing Care Facilities (“DOH”).

               3. I have reviewed documents that DOH has withheld from
               disclosure in the above-reference [sic] proceeding under

       11
           Impink’s attestation contained the following statement: “I understand that the statements
in this Attestation are subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn
falsification to authorities, which provides that if I knowingly make false statements, I may be
subject to criminal penalties.” R.R. at 195a.

                                                13
             Pennsylvania’s Right-to-Know-Law [sic] that are bates
             stamped WM APP 60 to WM APP 149 (“Submission”).
             These documents were submitted by [Broomall] to DOH
             in response to DOH’s request for additional information in
             connection with its consideration of [Broomall’s]
             licensure application.

             4. The Submission is unique because it was prepared
             exclusively for the purpose of supporting [Broomall’s]
             licensure application to DOH, and because it consists of a
             composite of detailed business information regarding
             [Broomall] and other affiliated entities that is available
             only in the Submission and is not readily obtainable from
             other sources.

             5. The Submission is treated as confidential and is not
             accessible to the public.


R.R. at 194a. The OOR determined that Impink’s attestation was conclusory, in that
she “generally attest[ed] that the withheld records are ‘treated as confidential and
[are] not accessible to the public.’” R.R. at 537a. “While [Broomall] considers the
withheld records confidential, [Broomall] does not address the efforts it took to
maintain secrecy of the withheld records, such as whether its officers, directors and
key employees are permitted to disclose their own biographical information to third
parties.” R.R. at 537a.
             Broomall argues that the OOR erred in finding that Impink’s attestation
did not establish the Submission’s confidentiality. Broomall’s Brief at 24-25.
Broomall contends that “Impink’s averment that ‘[t]he Submission is treated as
confidential and is not accessible to the public’ . . . amply showed the Submission is
confidential.” Broomall’s Brief at 26 (quoting R.R. at 194a). Broomall further
asserts that the OOR “ignored specific facts in Impink’s attestation establishing the


                                         14
Submission’s confidentiality.” Broomall’s Brief at 25. Broomall points out that
Impink attested that the “Submission is unique because it was prepared exclusively
for the purpose of supporting [Broomall’s] licensure application to DOH.”
Broomall’s Brief at 25 (quoting R.R. at 194a, ¶ 4) (emphasis in original). Thus,
Broomall asserts that “Impink established the Submission’s secrecy because the
Submission is a one-of-a-kind document that was prepared for one purpose and was
submitted only to DOH.” Broomall’s Brief at 25. Broomall also contends that
Impink supported her opinion that the Submission is unique by stating that it is a
“composite of detailed business information regarding [Broomall] and other
affiliated entities that is available only in the Submission and is not readily
obtainable from other sources.” Broomall’s Brief at 25 (quoting R.R. at 194a, ¶ 4).
             Murray counters that Broomall failed to satisfy its burden to prove that
the requested documents are exempt from disclosure as confidential proprietary
information pursuant to Section 708(b)(11) of the RTKL. Murray’s Brief at 19.
Murray contends that when considering whether records are confidential for
purposes of this exemption, courts look to “the efforts the parties undertook to
maintain their secrecy.” Murray’s Brief at 19 (quoting Commonwealth v. Eiseman,
85 A.3d 1117, 1128 (Pa. Cmwlth. 2014), rev’d on other grounds, 125 A.3d 19 (Pa.
2015)). Murray asserts that Impink’s attestation does not address any efforts
Broomall may have taken to maintain the secrecy of the requested records, but rather
provides “a general proclamation that the Submission is “treated as confidential” and
is “not accessible to the public.” Murray’s Brief at 20 (quoting R.R. at 194a).
Murray also contends that Impink did not “explain who has access to the records or
whether they are permitted to disclose their contents to third parties.” Murray’s Brief
at 20. Murray argues that the OOR correctly determined that such statements are


                                          15
conclusory and, thus, fail to establish applicability of the Section 708(b)(11)
exemption. Murray’s Brief at 20.
              We agree with the OOR that Broomall has failed to meet its burden to
establish that the Submission is exempt from disclosure as confidential proprietary
information under the RTKL. Here, Broomall proffers Impink’s attestation that the
Submission was a unique document prepared exclusively for DOH as evidence of
its confidentiality for purposes of the Section 708(b)(11) exemption. Broomall’s
Brief at 25.12 However, merely pointing out that the document was unique because
it was prepared solely for DOH does not establish whether the information therein
is confidential for purposes of the exemption.              Impink does attest that “[t]he
Submission is treated as confidential and is not accessible to the public.” R.R. at
194a. Although Broomall is only required to establish the claimed exemption by a
preponderance of the evidence, absent further specifics, such a conclusory statement
cannot carry even this low burden. An affidavit or attestation cannot merely “track[]
the language of the [exemption] it presupposes,” but must prove the exemption “with
sufficient detail.” Scolforo, 65 A.3d at 1104 (“Because this Affidavit is not detailed,
but rather conclusory, . . . it is not sufficient, standing alone, to prove that the
[requested records] are exempt from disclosure.”); see, e.g., Smith v. Pa. Dep’t of
Envtl. Prot., 161 A.3d 1049, 1056-57 (Pa. Cmwlth. 2017) (affidavit provided by
company outlining specific and extensive measures implemented to preserve secrecy
of information sufficed to establish its confidentiality for purposes of Section
708(b)(11)); Giurintano v. Dep’t of Gen. Servs., 20 A.3d 613 (Pa. Cmwlth. 2011)
       12
          At oral argument, Broomall’s counsel requested, and the Court granted, leave to further
examine the Reproduced Record to locate evidence that Broomall had attempted to preserve the
confidentiality of the withheld records. Broomall filed a letter with the Court on November 15,
2018, two days after argument. However, Broomall failed to provide the sought-after evidence
and, apart from asserting that the RTKL did not require marking the pages of the Submission
confidential, largely reiterated the arguments from its brief.
                                               16
(affidavit provided by company detailing efforts to safeguard information sufficed
to prove its confidentiality under Section 708(b)(11)).
               Because Broomall has failed to establish the first element of the Section
708(b)(11) exemption, it is clear that the Submission does not constitute confidential
proprietary information. Thus, we need not discuss the second element, pertaining
to whether disclosure would cause substantial harm to the competitive position of
the person that submitted the information.
               Accordingly, for the foregoing reasons, we affirm the OOR’s
determination that Murray’s appeal satisfied Section 1101(a)(1) of the RTKL and
that Broomall failed to establish that the Submission constituted confidential
proprietary information exempt from disclosure under Section 708(b)(11) of the
RTKL.13



                                              __________________________________
                                              CHRISTINE FIZZANO CANNON, Judge




       13
           Broomall also contends that, assuming arguendo the Submission is a public record, the
OOR erred in failing to require the redaction of certain information pursuant to Section 706 of the
RTKL, which provides that “agenc[ies] shall redact from the record the information which is not
subject to access . . . .” 65 P.S. § 67.706. See also Broomall’s Brief at 4, 27-28. However, because
Broomall did not establish that any portion of the Submission is exempt from disclosure, this
argument fails. Further, apart from vaguely alluding to the Section 708(b)(11) exemption,
Broomall fails to specify any RTKL exemption, privilege, or other reason to support its claim that
certain portions of the Submission were not subject to access and, thus, required redaction.

                                                17
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Broomall Operating Company, LP         :
d/b/a Broomall Rehabilitation and      :
Nursing Center,                        :
                  Petitioner           :
                                       :
            v.                         :
                                       :
William Murray,                        :   No. 1685 C.D. 2017
                  Respondent           :


                                    ORDER


            AND NOW, this 14th day of December, 2018, the October 17, 2017
final determination of the Office of Open Records is AFFIRMED.




                                     __________________________________
                                     CHRISTINE FIZZANO CANNON, Judge
