By: Kevin McKeon

As numerous requests to the Department of Health to release medical marijuana grower/processor and dispensary applications under the Right to Know Law (RTKL) progress into appeals to the Office of Open Records (OOR), applicants concerned about the release of trade secrets and other sensitive information in the applications will have concerns about the fate of documents OOR orders to be released during an appeal by the applicant to the Commonwealth Court. The concern is that once the records are released there will be no unringing the bell, and thus an appeal would be illusory.

Given the irreversible consequences of release at stake, every applicant should be aware of the Commonwealth Court’s timely September 21, 2017 decision in Baron v. Commonwealth Dep’t of Human Svcs.  In Baron, the Commonwealth Court was presented with the issue of whether a requester may enforce an order to disclose records sought under the RTKL while an appeal of that order by the entity whose documents are the subject of the order is pending.  The Commonwealth Court held, in an issue of first impression, that the automatic stay provision in Section 1301(b) that applies to agency appeals also applies to appeals by third parties (such as the medical marijuana applicants).

Acknowledging the logical implication of release – there’s no unringing the bell – the Commonwealth Court determined that the RTKL’s automatic stay “applies to all records at issue regardless of the basis for the exemption, who asserted it, or who preserved it.”

The moral of the story? Applicants, especially those winning permittees and those that intend to reapply for a permit in Phase II, need to be aware of the consequences of the release of their proprietary information. Applicants also need to be aware of the need to act quickly and strategically to protect their trade secrets, personal information, and security plans from public release. Based on the Commonwealth’s recent decision, the best way to keep DOH from “ringing the bell” on applications is to trigger the automatic stay the Commonwealth Court confirmed today in Baron by appealing the decision.

About the Author:

Kevin McKeon, partner at Hawke, McKeon & Sniscak, LLP, represents a diverse array of clients before Pennsylvania state agencies, and state and federal appellate courts. A co-author of West’s Pennsylvania Appellate Practice and immediate past chair of the Pennsylvania Appellate Court Procedural Rules Committee, Kevin uses his comprehensive knowledge of Pennsylvania appellate procedural rules to guide clients through complex appellate proceedings.