IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsylvania Department of Health,

Petitioner

V. No. 1066 C.D. 2021

ARGUED: May 17, 2022
Ed Mahon and Spotlight PA
(Office of Open Records),
Respondents

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE LORI A. DUMAS, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: August 19, 2022

This petition for review concerns the disclosure under the Right-to-

Know Law' (RTKL) of data regarding the number of patients certified to receive

medical marijuana under the Medical Marijuana Act (Act) 2 for specific conditions

and the required specificity of an affidavit denying the existence of written policies.

The Department of Health appeals from afinal determination of the Office of Open

Records (OOR) granting the request of Requestor Ed Mahon, an investigative

reporter, on behalf of Spotlight PA, 3 anews outlet (collectively, Respondents), for

'Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.

2Act of April 17, 2016, P.L. 84, as amended, 35 P.S. §§ 10231.101 - 10231.2110.

3Per records of the Pennsylvania Department of State, Bureau of Corporations and Charities,
Spotlight PA is afictitious name registered to The Philadelphia Inquirer, LLC.
 the data sought and for written policies describing how the Department tracks the

use of its medical marijuana program. We affirm in part and reverse in part.

The facts as found by the OOR are undisputed. On June 15, 2021, the

request was filed with the Department seeking two items: first, "[a]ggregate data for

the number of medical marijuana certification issues [sic] for each of the eligible

qualifying conditions" and, second, "[a]ny written policies or procedures describing

how the Department of Health tracks the use of its medical marijuana program,

including which qualifying conditions are certified. 114 (Reproduced Record "R.R."

at 3a-4a.) The Department denied the request with respect to the first item on the

ground that responsive records are confidential patient information under Section

302(a) of the Act, 35 P. S. § 1023 1.3 02(a), and with respect to the second item on the

ground that responsive records do not exist.

Requestor appealed to the OOR. After the parties filed statements,

briefs, and exhibits in support of their positions, the OOR issued its final

determination granting the request. With respect to the first item requested, the

breakdown of patient data, the OOR rejected the Department's contention that the

data was confidential under Section 302(a). The OOR explained that under its

reading of Section 302(a), "[a]ny records not confidential under subsection (a), and

not otherwise discussed in subsection [302(b)], are still presumed to be public

records and subject to the RTKL." [OOR Final Determination, In the Matter of

Mahon v. Pa. Dept of Health (

Docket No. AP 2021-1296, issued Sept. 2, 2021) at

p.7 (quoting OOR Final Determination, In the Matter of Finnerty v. Pa. Dep't of

4 The request indicates that an email from the Department's press office had suggested that
the information was tracked. Although that email is referred to at various points in the reproduced
record, it is not included therein.

2
Health (
Docket No. AP 2021-1061, issued July 15, 202 1)) at p. 5. 5]The OOR quoted

Finnerty's discussion as follows:

The overarching question before the OOR is whether the

requested information—aggregate data consisting of the
number of patients broken down by county—is
"information ... relating to patients, caregivers[] and other
applicants ...." 35 P.S. § 10231.302(a). It is difficult to
believe that the General Assembly intended the release of
aggregate data concerning the medical marijuana program
to be a crime, and the context of Section 302 does not
support the Department's broad interpretation. Subsection
(a) begins with discussing " aconfidential list of patients
and caregivers," and concludes by providing a non-
exhaustive list of examples of records that are subject to
confidentiality, all of which concern the identification of
specific patients and caregivers. The heading of
subsection (a) is "Patient information." Based upon this
context, the OOR can only conclude that subsection (a)
concerns information and records relating to specific
patients and caregivers, rather than information in the
aggregate about the program.

[Id. at 7 (quoting Finnerty) (

footnotes from Finnerty omitted)]. Applying Finnerty,

the OOR continued:

Turning to the instant matter, in Item 1, the Requester

expressly seeks aggregate data namely, "aggregate data
for the number of medical marijuana certification [ sic]
issue[d]" for the list of qualifying conditions found in the
Act. The Department asserts that the requested data " falls
plainly within the universe of [`] all information obtained
by the [D]epartment relating to patients, caregivers and
other applicants[']" and is the type of " information
relating to the patient's serious medical condition."
However, as in Finnerty, Item 1expressly seeks data of

5 The Finnerty final determination granted another request for aggregate patient data, and the
number of medical marijuana patients per county, and is found in the reproduced record. (R.R. at
81a- 86a.) The Department has appealed that decision to this Court at Docket No. 1356 C.D. 2021
and the matter is currently pending.

3
 the medical marijuana certifications by category, not
information that would be related to a specific patient,
caregiver or applicant certification.

(Id. at 8.) The OOR went on to distinguish the instant case from Feldman v.

Pennsylvania Commission on Crime and Delinquency, 208 A.3d 167 (Pa. Cmwlth.),

appeal denied, 218 A.3d 374 (Pa. 2019) (discussed at pp. 5-6, infra).

With regard to the second item requested, written policies, the OOR

determined that the Department had failed to prove that responsive records did not

exist, deeming an affidavit submitted by the Department denying the existence of

responsive records to be insufficiently detailed and conclusory.

On appeal, the Department raises two issues: ( 1) whether the OOR

erred as amatter of law in concluding that the records requested (the aggregate

number of patients by condition) were not confidential under Section 302(a) of the

Act and (2) whether the OOR erred in disregarding the affidavit as competent

evidence in determining that the Department failed to prove the nonexistence of

responsive records concerning written policies.

With regard to its first issue, the Department relies upon Section 302(a)

of the Act, which provides as follows:

(a) Patient information.--The [D]epartment shall maintain

aconfidential list of patients ... to whom it has issued
identification cards. All information obtained by the
[D]epartment relating to patients . . . shall be
confidential and not subject to public disclosure,
including disclosure under the [RTKL], including:

(1) Individual identifying information about patients.

(2) Certifications issued by practitioners.

(3)Information on identification cards.

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 (4) Information provided by the Pennsylvania State
Police under section 502(b).

(5)Information relating to the patient's serious medical

condition.

35 P.S. § 10231.302(a). 6 Subsection (b) goes on to list various specific records

which are considered public, none of which pertain in the instant case. See 35 P.S.

§10231.302(b).

The resolution of this issue turns on whether the aggregated number of

patients per condition constitutes " information obtained by the [D]epartment relating

to patients" under Section 302(a). The Department asserts that this prohibition

should be read to prohibit the release of the requested information, citing our

decision in Feldman. In Feldman, arequestor sought alist of individuals from the

Pennsylvania Commission on Crime and Delinquency who were denied crime

victim compensation benefits categorized by demographic data, including

race/ethnicity, gender, age, zip code, and county of residence. 208 A.3d at 169. The

requestor received certain aggregated data concerning victim compensation benefits

awarded but was denied records concerning certain demographic information. Id.

We relied upon the language of Section 709 of the Crime Victims Act,' in concluding

that all the records requested were confidential. Id. at 174. Section 709(a) provides

that "[aJll reports, records or other information obtained or produced by the

[Pennsylvania Commission on Crime and Delinquency, Bureau of Victim Services,]

during the processing or investigation of a claim shall be confidential and

6Under Section 305(a) of the RTKL, arecord in the possession of aCommonwealth agency
is presumed to be apublic record unless it is exempt, inter alia, under state law or regulation. 65
P.S. § 67.305(a).

7 Act of November 24, 1998, P.L. 882, as amended, 18 P.S. § 11.709.

5
privileged," 18 P.S. § 11.709(a) (emphasis added), and Section 709(b) provides that

"[e]xcept as otherwise provided by law, no person who has had access to areport,

record or any other information under this subsection shall disclose the content of

such areport, record or other information," 18 P.S. § 11.709(b).

However, the confidentiality provision involved in this case is narrower

than the provisions relied upon in Feldman and our more recent, unreported case,

Pennsylvania Department of Revenue v. Wagaman (

Pa. Cmwlth., No. 1494 C.D.

2019, filed December 30, 2021). In Wagaman, we held that information which

would require analysis of an informational report, the aggregate tax totals gathered

in aneighborhood improvement zone by tax category, was confidential. Wagaman

interpreted anewly amended Section 731 of The Fiscal Code,' 72 P.S. § 731 (relating

to confidential information), which provides:

Except as provided by law, any information gained by any

administrative department, board, or commission, as a
result of any returns, reports, correspondence, claims,
investigations, hearings, certifications or verifications
required or authorized under the statutes of the
Commonwealth imposing taxes or bonus for state
purposes, or providing for the collection of the same,
providing for credits as administered by the [Department]
independently or in conjunction with other agencies or
revenue transfers to improvement or economic
development zones shall be confidential except for official
purposes ....

'Section 731 of Act of April 9, 1929, P.L. 343, as amended, added by Section 9of Act of
June 6, 1939, P.L. 261, 72 P.S. § 731. The amendment adding "reports" to the definition of
confidential information was added by Act of June 30, 2021, P.L. 62 (effective July 1, 2021,
retroactive to January 1, 2016).

6
 Thus, Feldman and Wagaman each address statutes that prohibit the disclosure not

only of information contained in submissions, but also, in each case, records

produced by an agency in reports.

Conversely, Section 302(a) of the Act is anarrower, more specific,

provision. It renders confidential only "[a]ll information obtained by the

[D]epartment relating to patients," who are defined by Section 103 of the Act to be

"individual [s]. " 9 Section 302(a) by its own teiins does not make all information,

such as reports, confidential. The larger context of the confidentiality provision

suggests a similar construction, with the Department required to "maintain a

confidential list of [individual] patients ... to whom it has issued identification

cards" and alist of examples of such information, albeit non-exclusive, which are

by their nature individual (i.e., "[i]ndividual identifying information about patients .

. ."; "[c]ertifications issued by practitioners"; "[i]nformation on identification

cards"; "[i]nformation provided by Pennsylvania State Police . . . ."; and

"[i]nformation relating to the patient's serious medical condition"). 35 P.S. §

10231.302(a). The relationship to individual patients in these prohibitions is

manifest and exclusive. Thus, we conclude that the aggregated data requested is not

9 Section 103 of the Act defines "patient" to mean "[a]n individual who: ( 1) has aserious
medical condition; (2) has met the requirements for certification under this [A]ct; and (3) is a
resident of this Commonwealth." 35 P.S. § 10231.103 (relating to definitions) (emphasis added).

7
 patient information under Section 302(a), and because only patient information is

protected, the requested data is subject to disclosure.", 11

The Department next argues that the OOR erred in disregarding the

affidavit stating that no responsive records existed to the request for written policies

for tracking the use of the medical marijuana program. The Department's affidavit,

affirmed by its open records officer and submitted during the appeals process to the

OOR, stated that she was familiar with the records of the agency, that she had

performed acomprehensive search for responsive records, 12 and that there were no

such policies within the Department's possession. (Affidavit, R.R. at 100a-Ola.)

The Department notes that the OOR rejected the affidavit solely on the ground that

10 Nevertheless, we reject the contention of Respondents that the provision relating to

aggregate data in the RTKL, see Section 708(d) of the RTKL, 65 P.S. § 67.708(d), and Section
302(a) must be read in pari materia. See Section 305(a) of the RTKL, 65 P.S. § 67.305(a) (records
in an agency's possession are presumed public unless exempt "under any ... State law"). The
RTKL is clear; state statutes that designate the "public or nonpublic nature of arecord" supersede
the RTKL and its disclosure mandate. Section 306 of the RTKL, 65 P.S. § 67.306; see Highmark
Inc. v. Voltz, 163 A.3d 485 (Pa. Cmwlth. 2017) (
en banc) (
upholding insurance statutes as statutory
exemption). Our decision here is based exclusively on our reading of Section 302(a).

11 The Department also argues that releasing the requested data would subject its employees
to criminal liability. (Dep't Br. at 15.) However, the misdemeanor provision in Section 1307 of
the Act does not apply where "disclosure is permitted ... by law or by court order." 35 P.S. §
10231.1307.

The Department also argues in a footnote that several other confidentiality provisions in
Pennsylvania Law would be "rendered useless by the OOR's wholesale provision of aggregate
information." (Dep't Br. at 15 n.4). This argument misses the point. It is not the aggregation of
the data that makes it subject to disclosure, but rather the narrow limitation of the confidentiality
provision to patient information, which we have found not to apply to the requested data. Thus,
we do not believe that our holding gives wholesale provision of aggregate information in every
context. See Feldman and Wagaman. Furthermore, this argument is undeveloped and therefore
waived.

12 The Department's denial of the request indicated that the open records officer had been
advised that no such records exist. (Denial Letter, R.R. at 4a.)

8
 it was conclusory, without discrediting the affiant, finding that the Department acted

in bad faith, or even noting contradictory or countervailing evidence. The

Department contends that if arecord does not exist, it is " axiomatic" that denial of

its existence is sufficient proof. (Dep't Br. at 17.) The Department suggests that

this constituted adetermination concerning the affiant's credibility, and that while it

might have welcomed the opportunity to participate in an evidentiary hearing, in the

absence of one, the affidavit was sufficient.

Respondents ask that the Court adopt the OOR's findings of fact and

legal reasoning. Respondents cite various statements of this Court concerning the

requirements of affidavits addressing attempts to bring records within exemptions to

the RTKL. For such purposes, testimonial affidavits must be relevant and credible

to provide sufficient evidence in support of aclaimed exemption. Heavens v. Pa.

Dep't ofEnv'tProt., 65 A.3d 1069, 1074 (Pa. Cmwlth. 2013). An affidavit must be

detailed, nonconclusory, and submitted in good faith, and merely tracking the

language of an exception it presupposes is insufficient to demonstrate that the

responsive records are exempt from disclosure. Pa. State Police v. Muller, 124 A.3d

761, 765 (Pa. Cmwlth. 2015). A generic determination or conclusory statements are

not sufficient to justify the exemption of public records. Off. of the Governor v.

Scolforo, 65 A.3d 1095, 1103 (Pa. Cmwlth. 2013). Respondents assert that the

affidavit provided here lacked the requisite detail and point out evidence that the

Department apparently does track this data to some extent. 13

13 At ameeting of the Medical Marijuana Advisory Board on August 14, 2019, it was reported
that there were about 180,000 patient registrants in the program (Minutes at 24, R.R. at 52a), and
in response to aboard member's question, it was reported that 50.5% of those patients were
certified for intractable pain and that about 3,000 patients were certified for anxiety, representing
2.7% of the total at that point (Minutes at 27-28, R.R. at 55a- 56a). A presentation dated February
13, 2020, given at another Board meeting, available on the Department's website, breaks down
(Footnote continued on next page...)

9
 The cases cited by Respondents establish, that to meet the burden of

establishing that arecord is exempt from disclosure, atestimonial affidavit from an

agency must be detailed and non-conclusory. However, while an agency also has

the burden of proving that arecord does not exist, " it may satisfy its burden of proof

... with either an unsworn attestation by the person who searched for the record or

asworn affidavit of nonexistence of the record." Hodges v. Pa. Dep't ofHealth, 29

A.3d 1190, 1192 (Pa. Cmwlth. 2011); Moore v. Off. of Open Recs., 992 A.2d 907,

909 (Pa. Cmwlth. 2010) (search of records and sworn and unsworn affidavits that

documents were not in agency's possession are enough to satisfy burden of

demonstrating nonexistence). It is questionable to what degree additional detail and

explanation are necessary to establish the nonexistence of arecord rather than its

exemption from disclosure. In the absence of any competent evidence that the

agency acted in bad faith or that the agency records exist, the averments in such

affidavits should be accepted as true. Smith Butz, LLC v. Pa. Dep't of Env't Prot.,

142 A.3d 941, 945 (Pa. Cmwlth. 2016).

In the instant case, we have no such countervailing evidence. In

addition, we decline to presume that the compilation of records of medical marijuana

patients by condition means that there are "written policies and procedures" for

tracking the use of the medical marijuana program. As our review of final

determinations of the OOR is de novo, we need not defer to its findings, particularly

when there is alack of evidence to support them.

and ranks the proportion of medical marijuana patient registrants by condition. (Powerpoint
Presentation, R.R. at 137a.)

10
 In light of the foregoing, we affirm that portion of the OOR's

determination relating to disclosure of the number of patients certified by condition

and reverse that portion relating to disclosure of written policies.

V.4-
a tzwt4v
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita

11
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsylvania Department of Health,

Petitioner

V. : No. 1066 C.D. 2021

Ed Mahon and Spotlight PA

(Office of Open Records),
Respondents

ORDER

AND NOW, this 19th day of August, 2022, the determination of the

Office of Open Records is AFFIRMED IN PART and REVERSED IN PART in

accordance with the foregoing opinion.

BONNIE BRIGANCE LEADBETTER,

President Judge Emerita

Order Exit
08/19/2022