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RTK & Confidential/Proprietary Information: What is a Municipality’s Duty to a Third-Party?

The Pennsylvania Right-to-Know Law specifically exempts from disclosure records that constitute or reveal “a trade secret or confidential proprietary information.” “Confidential proprietary information” is defined in the Act as “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.” This two-part test is, quite frankly, out of the wheelhouse for most municipality’s, agencies, and Open Records Officers. How can an Open Records Officer be expected to know if a release of information would substantially harm the competitive position of a vendor?


Luckily for agencies subject to the Right-to-Know Law, the Commonwealth Court has recognized that they are ill-suited to this task. In light of this recognition, the Commonwealth Court has placed an affirmative duty on agencies to inform third-parties (e.g., a vendor) of the information being sought in a request where the confidential information of a private entity is at stake. Department of Corrections v. Vernon Maulsby, 1222 C.D. 2014. Once a third-party has been informed, the burden shifts to the third-party to join the appeal and prove by a preponderance of the evidence that the requested records are exempt from disclosure. Id.

Best Practices for Confidential/Proprietary Right-to-Know Requests

  • After determining that a request implicates information that may be confidential/proprietary under the Act, the agency should immediately inform the third-party of the request, and ask for guidance.


  • If the third-party provides an argument to the agency that the requested record is exempt under the confidential/proprietary information exclusion, the agency should strongly consider denying the request as exempt under the exclusion.


  • Should the requester file an appeal, the agency must notify the third-party of the appeal immediately and provide proof of that notice to the Office of Open Records within 7 business days.


  • The notice must include all of the appeal information provided to the agency by the Office of Open Records and must advise the third-party that as an interested party they may request to participate in the appeal.


  • The notice must also include a statement that failure to participate in an appeal before the Office of Open Records may be construed as a waiver of objections regarding release of the requested records.

If you have any questions about a Right-to-Know request for confidential/proprietary information, or any other Right-to-Know issue, please reach out to the municipal attorneys at Stock and Leader.

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