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

:
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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
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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.

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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

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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

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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)

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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).

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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.

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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).

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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“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).

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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

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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.

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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.

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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“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

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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

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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

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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

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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

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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.

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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
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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
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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.
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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)

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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.

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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

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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.

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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.

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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

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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