PENNSYLVANIA OFFICE OF OPEN RECORDS

Charles Spatz, :
:
Requester, :
:
: DOCKET # AP 2021-0718
v. :
:
:
Philadelphia Gas Works, :
:
Respondent. :
___________________________________ :

LEGAL POSITION OF RESPONDENT, PHILADELPHIA GAS WORKS,

IN OPPOSITION TO APPEAL OF COMPLAINANT,
CHARLES SPATZ

Respondent, Philadelphia Gas Works (“PGW”), by and though its undersigned counsel,

hereby submits the following in opposition to the Appeal of Charles Spatz (“Mr. Spatz”) to the

March 19, 2021 response of PGW to Mr. Spatz’s Right-to-Know request dated February 11,

2021:

I. INTRODUCTION

The issue on appeal to the Office of Open Records (“OOR”) is whether, under the

Pennsylvania Right to Know Law (“RTKL”), PGW properly denied Mr. Spatz’s request for

certain emails and/or attachments received and/or sent by Greg Stunder (“Mr. Stunder”), PGW’s

Vice President of Regulatory & Legislative Affairs, between December 2, 2020 and the date Mr.

Spatz’s request was processed, containing the following search terms provided by Mr. Spatz:

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“energy choice”; “preemption”; and “Yaw”. 1 On February 18, 2021, Mr. Spatz confirmed that

his request was seeking correspondence to and from PGW’s Vice President of Regulatory &

Legislative Affairs related to Senate Bill 275, Energy Choice Legislation introduced by

Pennsylvania Senator Gene Yaw, which was ultimately referred to local government on February

24, 2021. 2 Mr. Spatz’s request was granted in part, and denied in part, as set forth below.

PGW is a natural gas utility and natural gas distribution operation owned by the City of

Philadelphia. (Attestation of Gregory Stunder (“Stunder Attestation”), attached as Exhibit “1”,

¶¶2-3). Senate Bill 275 is a bill that would preclude local regulation banning use of natural gas

and other sources of energy. Senator Yaw’s stated purpose in introducing Bill 275 is preserving

the Commonwealth’s authority to set energy policy in order to prevent an “unworkable

patchwork of restrictions” and “ensure that all Pennsylvania businesses and homeowners have

the opportunity to access energy, whether it be natural gas, solar, wind, geothermal or other.”

(See Senate Co-Sponsorship Memorandum Regarding Energy Choice Legislation, discussed

infra and attached as Exhibit “2”).

As PGW’s Vice President of Regulatory & Legislative Affairs, Mr. Stunder is largely

responsible for developing and implementing PGW’s strategy regarding pending legislation and

regulations, in order to help PGW remain competitive and thriving in the energy market.

(Stunder Attestation, ¶¶1, 5-6). His professional activities are critical to ensuring that PGW, in its

somewhat unique and novel position as a municipal utility, is not left out of energy-related

legislation impacting natural gas. PGW, which is the largest municipally-owned gas utility in the

1
PGW granted Mr. Spatz’s request with respect to the search term “bill sponsor” in its entirety.
2
Mr. Spatz stated in an email dated February 18, 2021 (attached hereto as Exhibit “5”) that he
was seeking correspondence relating to:
“https://www.legis.state.pa.us/cfdocs/Legis/CSM/showMemoPublic.cfm?chamber=S&SPick=20
210&cosponId=34333”. This Memorandum has been attached hereto as Exhibit “2”.

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nation, must function within an extremely competitive energy marketplace, alongside privately-

owned competing energy suppliers (e.g., oil, steam, and electricity).

Recognizing this reality, the Pennsylvania Legislature provided in the Natural Gas

Choice and Competition Act, 66 Pa. C.S.§ 2201, et seq., that despite being city-owned, PGW is

to be treated as a competitive enterprise that must be able to function in the market in a manner

distinct from other government agencies and should not be forced to waive its competitive edge

by virtue of its status as a public agency subject to the RTKL. To that end, the Legislature

provided that certain PGW records are not public records at all under the RTKL. Pennsylvania’s

Natural Gas Choice and Competition Act protects and specifically excludes competitively

sensitive records of a natural gas distribution operation, as well as its proprietary information and

trade secrets, from the disclosure requirements of the RTKL. See 66 Pa. C.S. 2212(t)

(“competitively sensitive information of a city natural gas distribution operation shall not be

public records for purposes of the act of June 21, 1957 (P.L. 390, No. 212), referred to as the

Right-to-Know Law, and shall not be subject to mandatory public disclosure.”).

Failing to recognize PGW’s right to withhold the competitively sensitive records

requested by Mr. Spatz would result in devastating consequences to PGW and its ratepayers,

contrary to the requirements of 2212(t), and the intent of the RTKL itself. 3 (Affidavit of Terrance

J. Fitzpatrick, President & CEO of the Energy Association of Pennsylvania, hereinafter

“Fitzpatrick Affidavit”). PGW delivers safe, reliable natural gas to approximately 500,000

customers in the City of Philadelphia. (Stunder Attestation, ¶4; Fitzpatrick Affidavit). Mr. Spatz

3
As the Commonwealth Court has acknowledged, certain exemptions to the RTKL actually
benefit the public because forcing governmental agencies to “operate in a fishbowl” would cause
“the frank exchange of ideas and opinions [to] cease and the quality of administrative decisions
would consequently suffer.” McGowan v. Pa. Dep’t of Env’t Prot., 103 A.3d 372, 381 (Pa.
Cmwlth. 2014) (quoting Joe v. Prison Health Servs., Inc., 782 A.2d 24, 33 (Pa. Cmlwth. 2001).

3
is asking the Office of Open Records to expose the written communication records of PGW’s

legislative lead tasked with and responsible for developing PGW’s legislative strategy with

respect to remaining competitive in the energy market on that very topic. Such exposure, and

violation of Section 2212(t), would shut down PGW’s ability to freely strategize and engage in

the frank exchange of opinions and ideas regarding energy policy. (Stunder Attestation, ¶¶ 23-

24; Fitzpatrick Affidavit). This will have devastating results for the public, particularly the

residents of the City of Philadelphia who rely on PGW as an affordable and reliable source of

energy. Industry partners and others who share a competitive strategy but do not wish to develop

energy policy from a fishbowl will ultimately leave PGW out of the conversation, resulting in

energy policy and legislation that does not take into account the needs and interests of the gas

ratepayers of the City of Philadelphia.

In addition to the aforesaid unique statutory, common sense, and policy reasons for

denying Mr. Spatz’s appeal, there are a host of reasons PGW’s denial of Mr. Spatz’s request was

proper under exemptions provided for by the RTKL itself applicable to all public agencies. PGW

properly denied Mr. Spatz’s request for the emails and attachments at issue sent and/or received

by Mr. Stunder containing the search terms “Yaw”; “energy choice”; and/or “preemption”

because, as demonstrated herein below and in the attachments hereto, these records are clearly

exempt from disclosure for one or more of the following reasons:

1. As noted above, the records reflect competitively sensitive information under the

Natural Gas Choice and Competition Act and therefore are not public records subject

to the RTKL. See 66 Pa. C.S. 2212(t) (“competitively sensitive information of a city

natural gas distribution operation shall not be public records for purposes of the act of

June 21, 1957 (P.L. 390, No. 212), referred to as the Right-to-Know Law, and shall

4
 not be subject to mandatory public disclosure.”); 65 P.S. § 305(a)(3) (a record in the

possession of a public agency shall not be presumed to be a public record if the record

is exempt from disclosure under any other State law or regulation); 65 P.S. § 306

(nothing 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.”);

2. The records constitute “the draft of a bill or amendment thereto prepared by or for an

agency”, and are therefore exempt from disclosure under Section 708(b)(9) of the

RTKL;

3. The records reflect the internal, predecisional deliberations of an agency, its

members, employees or officials or predecisional deliberations between agency

members, employees or officials and members, employees or officials of another

agency relating to legislative proposal and/or legislative amendment, contemplated or

proposed policy or course of action and/or documents used in the predecisional

deliberations, and are therefore exempt from disclosure under Section

708(b)(10)(i)(A) of the RTKL;

4. The records reflect the strategy to be used to develop or achieve the successful

adoption of a legislative proposal, and are therefore exempt from disclosure under

Section 708(b)(10)(i)(B) of the RTKL;

5. The records are attorney-client privileged communications which are not public

records subject to the RTKL under Section 305(a)(2) of the RTKL;

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 6. The records are not public records subject to disclosure as they are not “records”

under Section 102 of the RTKL because they do not document a transaction or

activity of PGW; 4 and/or

7. The records are confidential and proprietary records of a third party, which are not

subject to disclosure under Section 708(b)(11) of the RTKL.

The portion of Mr. Spatz’s request that was denied was properly denied, his appeal

should be denied, and PGW should not be required to take any further action with respect to his

request and his appeal.

II. PROCEDURAL HISTORY AND STATEMENT OF FACTS

On February 11, 2021, Mr. Spatz submitted a request to PGW under the RTKL for the

following: “all emails and attachments sent/received by [PGW Vice President, Regulatory &

Legislative Affairs] Greg Stunder” between December 1, 2020 and the processing date of his

request containing the terms “energy choice”; “preemption”; “Yaw”; and/or “bill sponsor.” (See

Request dated February 11, 2021, attached as Exhibit “3”). On February 18, 2021, PGW, by and

through its Open Records Officer, Brett A. Zahorchak, Esq., acknowledged receipt of Mr.

Spatz’s requests and invoked a thirty (30) day extension of time in which to respond pursuant to

Section 902 of the RTKL. (See Correspondence from Brett A. Zahorchak dated February 18,

2021, attached as Exhibit “4”). Also on February 18, 2021, Mr. Spatz sent an email to PGW’s

Open Records Officer stating that he was “basically looking for any correspondence related to”

Energy Choice Legislation introduced by Senator Yaw on or about January 22, 2021. (See

Correspondence from Mr. Spatz dated February 18, 2021, attached as Exhibit “5”; see also

Memorandum regarding Energy Choice Legislation, attached as Exhibit “2”).

4
PGW may assert exemptions on appeal even if it did not assert them when the request was
denied. Levy v. Senate of Pa., 65 A.3d 361 (Pa. 2013).

6
 William Dolan, PGW’s Manager, Network & System Engineering, conducted a search of

the email of Greg Stunder, PGW’s Vice President, Regulatory & Legislative Affairs, using the

search terms and temporal parameters requested by Mr. Spatz. (See Attestation of William

Dolan, attached as Exhibit “6”). The emails and attachments were reviewed by PGW’s Open

Records Officer, Brett A Zahorchak, Esq. (See RTKL Log for Exemptions and Privileged

Records and Attestation of Brett A. Zahorchak, collectively attached as Exhibit “7”). The search

for “bill sponsor” returned emails and attachments which PGW marked “BILL SPONSOR001-

003.” Id. The search for “energy choice” returned emails and attachments which PGW marked

“ENERGY CHOICE001-113.” Id. The search for “preemption” returned emails and attachments

which PGW marked “PREEMPTION001-055.” The search for “Yaw” returned emails and

attachments which PGW marked “YAW001-123.”. Id. As reflected in PGW’s RTKL Log for

Exemptions and Privileged Records, the searches returned many duplicative and overlapping

emails and attachments. Id.

On March 19, 2021, PGW granted Mr. Spatz’s request in part, and denied Mr. Spatz’s

request in part. (See Correspondence dated March 19, 2021 with attachments, attached as Exhibit

“8”). On April 4, 2021, Mr. Spatz filed the instant appeal with the Office of Open Records

(“OOR”). 5 On April 7, 2021, PGW was noticed of Mr. Spatz’s appeal, and on April 8, 2021,

5
In Mr. Spatz’s appeal, he claims that, among other things, “PGW has a history of taking exemptions too far in
response to my requests, in particular regarding what is confidential and proprietary” and cites to In re Spatz,
OOR Dkt. AP 2018-1918. It should be noted that: (1) the OOR did not hold that PGW took its exemptions “too far”
in the cited case, but rather held that PGW did not meet its burden in that instance with respect to the affidavit that it
provided addressing the records at issue; (2) PGW has not claimed that any of the records it withheld in response to
Mr. Spatz’s were “confidential and proprietary”, but rather PGW withheld records that were competitively sensitive
within the meaning of the Natural Gas Choice and Competition Act and therefore not records subject to disclosure
under the RTKL; and (3) PGW has no such “history” where Mr. Spatz has submitted approximately 10 other
voluminous, e-discovery-like requests since the end of 2018 – to the contrary, PGW has provided hundreds of
responsive records to Mr. Spatz, even in some instances where records would otherwise have been exempt from
disclosure. (Exhibit “7”; ¶9).

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PGW provided written notice to all third parties with possible interest in participating in Mr.

Spatz’s appeal. (See Partially Redacted Notices, attachments omitted, attached as Exhibit “9”). 6

III. LEGAL ARGUMENT

A. Legal Standard.

“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. OOR, 990 A.2d 813, 824 (Pa. Cmwlth. 2010), appeal granted 15 A.3d 427 (Pa.

2011).

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

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).

PGW is a local agency subject to the RTKL that is required to disclose public records.

David Wolf v. Philadelphia Gas Works, OOR Docket AP 2013-1176, 2013 WL 4400225, *2

(Aug. 7, 2013) (citing 65 P.S. § 67.302). Records in possession of a local agency are presumed

public unless exempt under the RTKL or other law or protected by a privilege, judicial order or

decree. See 65 P.S. § 67.305. An agency bears the burden of proving the applicability of any

6
As part of PGW’s reason for withholding records is due to the competitively sensitive nature of the records it
withheld and its strategy in the successful development and adoption of legislation, including but not limited to the
identities of entities with which it communicated, PGW has redacted the identity of those it noticed on one of the
notices. However, PGW is happy to provide the Open Records Officer with an unredacted copy of this notice for in
camera review, if necessary.

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cited exemptions. See 65 P.S. § 67.708(b). Section 708 of the RTKL places the burden of proof

on the public body to demonstrate that a record is exempt by a preponderance of the evidence.

See 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. Cmwlth. 2011)

(quoting Dep't of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821, 827 (Pa.

Cmwlth. 2010)).

B. Legal Argument.

PGW properly denied the portions of Mr. Spatz’s request that are at issue in this appeal.

As set forth with specificity herein below and in the attachments hereto, each record withheld

was and is exempt from disclosure under one or more sections of the RTKL. Furthermore, with

respect to competitively sensitive materials of PGW, the Natural Gas Choice and Competition

Act has granted PGW a statutory exception to the RTKL and clarifies that those documents are

not to be considered “public records” for purpose of the RTKL. Therefore, Mr. Spatz’s appeal

should be denied, and PGW should not be required to take any further action in connection with

his request.

1. PGW properly withheld competitively sensitive information within the

meaning of Section 2212(t) of the Natural Gas Choice and Competition Act
because they are not public records subject to disclosure under Sections 305
and 306 the RTKL.

PGW properly withheld each and every record identified in its exemption log under

Sections 305 and 306 of the RTKL because the records constitute information that is

competitively sensitive to PGW’s operations and strategies within the meaning of Section

2212(t) of the Natural Gas Choice and Competition Act, and, therefore the RTKL does not apply.

See 66 Pa. C.S. § 2212(t). Records in possession of a local agency are presumed public unless

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exempt under Section 708 of the RTKL, protected by a privilege, or exempt from disclosure

under any other Federal or State law or regulation or judicial order or decree. 65 P.S. § 67.305.

Nothing in the RTKL “supersede[s] or modif[ies] 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. Similarly, “[i]f the provisions of [the RTKL] regarding access to records conflict with

any other Federal or State law, the provisions of [the RTKL] shall not apply.” 65 P.S. §

67.3101.1; see also Commonwealth Dept. of Transp. v. Walsh/Granite JV, 149 A.3 425 (Pa.

Cmwlth. 2016) (holding that proposals of unsuccessful bidders were not subject to disclosure

because Pennsylvania law foreclosed applicability of the RTKL).

“[C]ompetitively sensitive information of a city natural gas distribution operation shall

not be public records for purposes of the … Right-to-Know Law, and shall not be subject to

mandatory public disclosure.” 66 Pa. C.S. § 2212(t). PGW is owned by the City of Philadelphia

and a “city natural gas distribution operation” within the meaning of 66 Pa. C.S. § 2212. 66 Pa.

C.S. § 2212(a); Stunder Attestation, ¶¶2-4. Mr. Spatz was very clear that he is seeking records

relating to Senate Bill 275, Energy Choice Legislation. (Email dated February 18, 2021, Exhibit

“5”). The records identified in PGW’s exemption log were properly withheld because they are all

related to industry strategies regarding legislation that would impact PGW’s ability to compete in

the energy market. (See generally RTKL Log for Exemptions and Privileged Records; Stunder

Attestation; Fitzpatrick Affidavit).

The records at issue are all emails and/or attachments sent and/or received by Mr.

Stunder, PGW’s key legislative strategy and policy developer, all regarding pending legislation.

(Stunder Attestation, ¶¶1-9). Senate Bill 275, the main focus of Mr. Spatz’s request, specifically

prohibits local regulatory bans on natural gas and other energy sources. (Exhibit “2”). Therefore,

10
the very core of Mr. Spatz’s request is records relating to PGW’s strategy regarding legislation

that could make or break PGW’s ability to compete as a gas utility and city natural gas

distribution operation. There is no more comprehensive example of “competitively sensitive”

information. Because the Natural Gas Choice and Competition Act decrees that such information

is not subject to the RTKL, the RTKL does not apply to the records sought by Mr. Spatz, and,

therefore, the records Mr. Spatz seeks are not subject to disclosure.

Although Mr. Spatz has claimed that PGW has improperly asserted a “confidential and

proprietary” exemption, under Section 2212(t), “competitively sensitive” information is separate

and distinct from “proprietary information” and “trade secrets”. Id. Clearly, if the legislature

believed the existing exemptions under the RTKL (i.e., Section 708(b)(11) exempting from

disclosure trade secrets and confidential and proprietary information as defined by the RTKL)

adequately balanced PGW’s ability to withhold competitively sensitive information with its

obligations under the RTKL, it would not have been compelled to include the language of

Section 2212(t) in the Natural Gas Choice and Competition Act, rendering the RTKL

inapplicable. As the RTKL does not apply to the records requested by Mr. Spatz, his appeal

should be denied, and PGW should not be required to take any further action

2. PGW properly withheld attorney-client privileged communications.

PGW properly withheld the following records under Sections 305 and 306 of the RTKL,

which exempt from disclosure attorney-client privileged communications:

• YAW003-004, 051-052 (email correspondence between Raquel Guzmán, Esq.,

PGW General Counsel and VP, Legal; and Greg Stunder, PGW VP, Regulatory

and Legislative Affairs exchanging information regarding 2021-202 Legislative

Session for the purpose of seeking and providing legal advice to PGW);

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 • YAW016-018, 088-089, duplicated at PREEMPTION053-055 (email

correspondence with 1 related attachment between Greg Stunder, PGW VP,

Regulatory and Legislative Affairs, and Daniel Clearfield, Esq., Eckert Seamans

(PGW outside counsel) exchanging information for the purpose of seeking and

providing legal advice to PGW.

(Stunder Attestation; Exhibit “7”). “ Pursuant to section 305 of the RTKL, a record in the

possession of a local agency shall be presumed to be a public record, unless: the record is exempt

under section 708 of the RTKL; the record is protected by a privilege; or the record is exempt

from disclosure under any other Federal or State law or regulation or judicial order. 65 P.S. §

67.305. The RTKL defines the term “privilege” to include “[t]he attorney-work product doctrine,

the attorney-client privilege, the doctor-patient privilege, the speech and debate privilege or other

privilege recognized by a court interpreting the laws of this Commonwealth.” 65 P.S. § 67.102

(defining “privilege”). In Pennsylvania, the attorney-client privilege protects “confidential client-

to-attorney or attorney-to-client communications made for the purpose of obtaining or providing

professional legal advice.” Gillard v. AIG Ins. Co., 609 Pa. 65, 89 (2011).

Mr. Stunder attests that the records marked YAW003-004 and YAW051-052 constitute

email correspondence between he and Raquel Guzmán, Esq., PGW General Counsel and VP,

Legal, and that in these emails, they are exchanging information regarding legislative activity for

the purpose of providing legal advice to PGW as to implications of legislative activity for PGW.

(Stunder Attestation, ¶¶10-11). Mr. Stunder further attests that the records marked YAW016-

018, YAW088-089, and PREEMPTION053-055 constitute email correspondence with 1 related

attachment between he and PGW’s outside counsel, Daniel Clearfield, Esq., Eckert Seamans,

and that in these emails, they are exchanging information regarding legislative activity and

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legislative language for the purpose of obtaining and/or providing legal advice to PGW regarding

Senate Bill 275. (Stunder Attestation, ¶12). Mr. Stunder communicated confidentially with both

Attorney Guzmán and Attorney Clearfield, respectively. (Stunder Attestation, ¶¶10, 12). The

records are clearly confidential client-to-attorney or attorney-to-client communications made for

the purposes of obtaining or providing legal advice. Therefore, the records are not subject to

disclosure under the RTKL and were properly withheld.

3. PGW properly withheld drafts of Senate Bill 275 and amendments thereto,
which are expressly exempt from disclosure under Section 708(b)(9) of the
RTKL.

PGW properly withheld the following records under Section 708(b)(9) of the RTKL:

• YAW056-057, duplicated at ENERGY CHOICE040-041 and

PREEMPTION016-017 (Draft of Senator Yaw’s Energy Choice Legislation);

• YAW071-073, duplicated at PREEMPTION028-030 (email exchange of draft

legislative language regarding Senate Bill 275 between Mr. Stunder and the

Director of Government Affairs of a Natural Gas Utility).

• YAW005-015, 019-023, 074-079, 090-095, duplicated at ENERGY CHOICE004-

019, 070-081 (email exchange of draft legislative language regarding Senate Bill

275 among Mr. Stunder and other Legislative, Government, and Public Affairs

representatives of Natural Gas Utilities).

• YAW096-100, duplicated at ENERGY CHOICE086-090 and

PREEMPTION048-052 (email exchange of draft legislative language and

legislative strategy regarding Senate Bill 275 among Mr. Stunder and other

Legislative, Government, and Public Affairs representatives of Natural Gas

Utilities).

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 • YAW024-31, 101-119, duplicated at ENERGY CHOICE022-029, 091-109 (email

exchange of draft legislative language and legislative strategy regarding Senate

Bill 275 among Mr. Stunder and other Legislative, Government, and Public

Affairs representatives of Natural Gas Utilities).

(Stunder Attestation; Exhibit “7”). Section 708(b)(9) of the RTKL exempts from

disclosure the draft of a bill or amendment thereto prepared by or for an agency. See 65 P.S. §

708(b)(9). All of the above-referenced documents constitute drafts of Senate Bill 275 and/or

proposed amendments thereto which were either prepared by or for PGW. (Id.). Therefore, these

records are exempt from disclosure.

As discussed hereinabove, Senate Bill 275 is legislation that addresses PGW’s ability to

compete in the energy market. The drafts of legislative language circulated by and among Mr.

Stunder and other Legislative, Government, and Public Affairs representatives of Natural Gas

Utilities were either prepared for PGW and for Mr. Stunder’s review and comment, or by Mr.

Stunder. (Stunder Attestation, ¶¶23-26). Draft versions of legislation provided to an agency by a

non-governmental organization for review and comment are considered “prepared for” the

agency and thus protected from disclosure under Section 708(b)(9). Hanhausen v. Dep’t. of

Revenue, OOR Docket AP 2013-0214, 2013 WL 1613348 (Apr. 4, 2013). Therefore, PGW

properly withheld these documents and Mr. Spatz’s appeal should be denied.

4. PGW properly withheld records reflecting internal, predecisional

deliberations regarding legislative proposals and amendments, and/or
contemplated or proposed policy or course of action, and documents used in
connection therewith, which are expressly exempt from disclosure under
Section 708(b)(10)(i)(A) of the RTKL.

PGW properly withheld the following records under Section 708(b)(10)(i)(A) of the

RTKL:

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• YAW032-033 (communication from PGW contractor Gmerek Government

relations regarding 2021-2022 Legislative Session and pieces of legislation of

interest to PGW).

• YAW001-002, duplicated at ENERGY CHOICE034-035 (internal email from Mr.

Stunder to Bryan Marco, PGW Manager, Regulatory and Legislative Affairs,

sending information regarding legislative strategy for Senate Bill 275).

• YAW080-087 (communication from PGW contractor Gmerek Government

relations regarding Senate activity and proposed regulation by Governor Wolf

with potential to impact PGW with attached draft proposal letter in opposition

drafted by the Senate Environmental resources and Energy Committee).

• YAW003-004, duplicated at 051-052 (email correspondence between Raquel

Guzmán, Esq., PGW General Counsel and VP, Legal; and Greg Stunder, PGW

VP, Regulatory and Legislative Affairs exchanging information regarding 2021-

2022 Legislative Session for the purpose of seeking and providing legal advice to

PGW).

• YAW034-048 (Records of the Energy Association of Pennsylvania; Joint Electric

& Gas Legislative Committee Meeting - Monday 1/11/2021; Agenda and related

attachments).

• ENERGY CHOICE051-059 (Records of the Energy Association of Pennsylvania;

Joint Electric & Gas Legislative Committee Meeting - Monday, 1/25/2021,

agenda and related attachments).

• YAW064-070, duplicated at ENERGY CHOICE063-069, PREEMPTION018-

027 (018, 019, and 020 are duplicates of 021, 022, and 023 due to human error)

15
 (Records of the Energy Association of Pennsylvania; Joint Electric & Gas

Legislative Committee Meeting - Monday, 2/1/2021; agenda and related

materials).

(Stunder Attestation; Exhibit “7”). Section 708(b)(10)(i)(A) of the RTKL exempts from

disclosure records reflecting PGW’s internal, predecisional deliberations regarding legislative

proposals and amendments, as well as any contemplated or proposed policy or course of action,

and documents used in connection therewith. See 65 P.S. § 708(b)(10)(i)(A). In order to

withhold records on this basis, PGW must show by a preponderance of the evidence that the

record is (1) internal to the agency, (2) predecisional, and (3) deliberative in character, i.e.,

pertaining to proposed action. See Kaplan v. Merion Twp., 19 A.3d 1209 (Pa. Cmwlth. 2011).

All of the above-referenced records were internal to PGW (and/or only exchanged with PGW’s

contracted expert on government relations or received from the Energy Association of

Pennsylvania, a private organization, through Mr. Stunder’s activities on its Joint Gas & Electric

Legislative Committee); predecisional to PGW’s ongoing decisions with respect to energy policy

and proposed legislation; and pertaining to proposed actions. (Stunder Attestation, ¶¶10-11, 13-

22; Fitzpatrick Affidavit; see also Exhibit “7”). Therefore, PGW properly withheld these records

under the RTKL.

Regarding the internal communication between Mr. Stunder and Mr. Marco, as well as

the internal communication between Mr. Stunder and Attorney Guzmán, these are

communications regarding PGWs ongoing decisions with respect to energy policy and strategy

regarding proposed legislation. (Exhibit “7”; Stunder Attestation, ¶¶10-11, 13-17). Regarding the

communications with Gmerek Government Relations, as well as the communications from the

Energy Association of Pennsylvania, the Commonwealth Court has recently held that

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deliberative information exchanged between a municipal agency and a private entity may be

subject to exemption under Section 708(b)(10)(i) where the agency has encountered a “problem

outside of [its] ken” and has “enlist[ed] the help of outside experts...” Finnerty v. Pennsylvania

Department of Community and Economic Development, 208 A.3d 178, 189 (Pa. Cmwlth.),

appeal granted, 222 A.3d. 755 (Pa. 2019)(holding that predecisional deliberative exception may

protect records shared with a third-party contractor because the contractor acts as the agent of the

agency.); see also Office of General Counsel v. Bumstead, ---A.3d---, 2021 WL 682166, *9 (Pa.

Cmwlth. 2021) (affirming decision of OOR that records were “internal” to an agency under

708(b)(10)(i) despite the records having originated from an outside agency).

In a time where governmental action is being taken that could impact PGW’s ability to

conduct the business for which it exists, Gmerek is an expert in government relations with whom

PGW has contracted to help it address, in part, such topics of legislation. Similarly, PGW’s

relationship with the Energy of Pennsylvania and reliance on the records provided by EAP in

shaping its legislative strategy and policy decisions. (Stunder Attestation, ¶¶13-20; Fitzpatrick

Affidavit). The above-referenced records were properly withheld by PGW under Section

708(b)(10)(i)(A) of the RTKL, and Mr. Spatz’s appeal should be denied.

5. PGW properly withheld records that reflect the strategy used to develop or
achieve the successful adoption of Senate Bill 275, which are expressly
exempt from disclosure under Section 708(b)(10)(i)(B).

PGW properly withheld the following records under Section 708(b)(i)(B) of the RTKL:

• YAW001-002, duplicated at ENERGY CHOICE001-002 (internal email dated

January 8, 2021 from Mr. Stunder to Bryan Marco, PGW Manager, Regulatory &

Legislative Affairs, sending legislative strategy information regarding Senate Bill

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 275, Energy Choice Legislation, which was referred to local government on

February 24, 2021).

• YAW049-050, duplicated at ENERGY CHOICE034-035 (email dated January 1,

2021, from the Vice President, Legislative Affairs of a Natural Gas and Electric

Utility, to Mr. Stunder and other members of working group of legislative affairs

representatives from Natural Gas Distribution Companies, regarding Energy

Choice Legislation, with attachments, used for legislative strategy discussions and

proposed legislative amendments with respect to Senate Bill 275).

• ENERGY CHOICE003 (email dated January 8, 2021, from Mr. Stunder to

Director of Government and Public Affairs for a Natural Gas Distribution

Company and member of working group discussing legislative strategy with

respect to Senate Bill 275).

• ENERGY CHOICE036 (email dated January 11, 2021, from the Vice President,

Legislative Affairs of a Natural Gas and Electric Utility, to Mr. Stunder and other

members of working group of legislative affairs representatives from Natural Gas

Distribution Companies, strategically discussing proposed language with respect

to Senate Bill 275).

• YAW053-057, duplicated at ENERGY CHOICE037-041 and

PREEMPTION013-017 (email dated January 15, 2021, from the Vice President,

Legislative Affairs of a Natural Gas and Electric Utility, to Mr. Stunder and other

members of working group of legislative affairs representatives from Natural Gas

Distribution Companies, strategically discussing proposed language with respect

to Senate Bill 275).

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• YAW061-063, duplicated at ENERGY CHOICE060-062 (email dated January

25, 2021 from the Vice President, Legislative Affairs of a Natural Gas and

Electric Utility, to Mr. Stunder and other members of working group of legislative

affairs representatives from Natural Gas Distribution Companies, relating to

legislative strategy with respect to Senate Bill 275).

• YAW071-073, duplicated at PREEMPTION028-030 (email dated January 29,

2021 from the Director of Government Affairs of a Natural Gas Utility to Mr.

Stunder, with attachment, sending draft legislative language with respect to

Senate Bill 275).

• YAW005-015, 019-023, 074-079, 090-095, duplicated at ENERGY CHOICE004-

019, 070-081 (emails dated January 19, 2021 through February 4, 2021 among

Mr. Stunder and other Legislative, Government, and Public Affairs

representatives of Natural Gas Utilities sending draft legislative language and

discussing strategy with respect to Senate Bill 275).

• YAW016-018, 088-089, duplicated at PREEMPTION053-055 (attorney-client

privileged emails between Mr. Stunder and Daniel Clearfield, Esquire, Eckert

Seamans, PGW outside counsel, with respect to language of Senate Bill 275).

• ENERGY CHOICE020-021, 082 (emails dated February 5, 2021 between Mr.

Stunder and Daniel Lapato, Senior Director, State Affairs, American Gas

Association, discussing legislative strategy with respect to Senate Bill 275).

• YAW096-100, duplicated at ENERGY CHOICE086-090 and

PREEMPTION048-052 (emails dated February 9, 2021 among Mr. Stunder and

other Legislative, Government, and Public Affairs representatives of Natural Gas

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 Utilities sending draft legislative language and discussing strategy with related

attachments with respect to Senate Bill 275).

• YAW024-31, 101-119, duplicated at ENERGY CHOICE022-029, 091-109

(emails dated February 9, 2021 among Mr. Stunder and other Legislative,

Government, and Public Affairs representatives of Natural Gas Utilities sending

draft legislative language and discussing strategy with respect to Senate Bill 275).

(Stunder Attestation; Exhibit “7”). Section 708(b)(i)(B) of the RTKL exempts from

disclosure “[t]he strategy to be used to develop or achieve the successful adoption of a budget,

legislative proposal or regulation.” 65 P.S. § 67.708(b)(10)(i)(B). Unlike Section 708(b)(i)(A),

there is no requirement that records be internal, predecisional, or deliberative for Section

708(b)(i)(B) to apply. Id. (emphasis added). If the records reflect the agency’s strategy, they will

not be subject to disclosure under the RTKL. See McMahon and the York Daily Record v.

Pennsylvania Department of Revenue, OOR Dkt. AP 2015-1207, 2015 WL 5559669, *5-6 (Pa.

Off. Open Rec. Sept. 15, 2015) (holding records that would reveal strategy employed to achieve

successful adoption of budget not subject to disclosure under Section 708(b)(10(i)(B));

Campburn v. Borough of Pottstown, OOR Dkt. AP 2015-0246, 2015 WL 1924159 (Pa. Off.

Open Rec. Apr. 23. 2015 (holding that records reflecting the strategy of an agency’s adoption of

an ordinance was not subject to access under the RTKL).

Each of the above-referenced records reflect PGW’s strategy with respect to Senate Bill

275. (Stunder Attestation, ¶¶1-6, 23-26; Fitzpatrick Affidavit; Exhibit “7”). There is no way to

disclose any portion of the above-referenced records without revealing the identity of the entities

working together, the frank exchange of ideas and opinions with respect to different proposed

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language, and the documents consulted in the drafting of legislative language and shaping of

policy, all of which reveal PGW’s strategy with respect to Senate Bill 275. (Id.).

6. PGW properly withheld records that are not “records” within the meaning
of the RTKL because these records do not document a transaction or activity
of PGW.

PGW properly withheld the following records because they are not records subject to the

RTKL:

• YAW034-048 (Records of the Energy Association of Pennsylvania; Joint Electric

& Gas Legislative Committee Meeting - Monday 1/11/2021; Agenda and related

attachments).

• ENERGY CHOICE051-059 (Records of the Energy Association of Pennsylvania;

Joint Electric & Gas Legislative Committee Meeting - Monday, 1/25/2021,

agenda and related attachments).

• YAW064-070, duplicated at ENERGY CHOICE063-069, PREEMPTION018-

027 (018, 019, and 020 are duplicates of 021, 022, and 023 due to human error)

(Records of the Energy Association of Pennsylvania; Joint Electric & Gas

Legislative Committee Meeting - Monday, 2/1/2021; agenda and related

materials).

(Stunder Attestation; Exhibit “7”; Fitzpatrick Affidavit). A record in the possession of a

public agency is not a record subject to the RTKL if it does not meet the RTKL’s definition of

“record”. See Mollick v. Township of Worcester, 32 A.3d 859 (Pa. Commw. Ct. 2011). “Only

‘records’ of the agency to which the request is directed, the responding agency, are subject to the

RTKL.” Meguerian v. Office of the Atty. Gen., 86 A.3d 924, 929–30 (Pa. Commw. Ct. 2013)

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(citing Bagwell v. Dep't of Educ., 76 A.3d 81 (Pa.Cmwlth.2013) (en banc) (holding records at

issue must be “of” the agency to which requester directed a request, even when the subject

matter of the records involves another entity). Section 102 of the RTKL defines the term

“record” as:

Information, regardless of physical form or characteristics, that documents a transaction

or activity of an agency and that is created, received or retained pursuant to law or in

connection with a transaction, business or activity of the agency. The term includes a

document, paper, letter, map, book, tape, photograph, film or sound recording,

information stored or maintained electronically and a data-processed or image-processed

document.

65 P.S. § 67.102.

Mr. Stunder’s position on the Energy Association of Pennsylvania’s Joint Electric & Gas

Legislative Committee does not render the records sent by the Energy Association of

Pennsylvania to Mr. Stunder by virtue of that position subject to public disclosure. (Stunder

Attestation, ¶¶21-22; Fitzpatrick Affidavit). Where an agency’s representative receives the

records of another entity by virtue of the agency representative’s position with or association

with that other entity, the records do not constitute “records” under the RTKL because they were

not “created, received or retained pursuant to law or in connection with a transaction, business or

activity of the agency.” See Uhr v. Pennsylvania Liquor Control Board, 2014 WL 896839

(Pa.Off.Open Rec. March 3, 2014) (holding that emails between officials of the Responsible

Hospitality Institute (“RHI”) and RHI board members who were on the PA Liquor Control Board

(“PALCB”) were not “records” of the PALCB because the requested information did not

document a transaction or activity of the PALCB); see also Office of the Governor v. Bari, 20

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A.3d 634, 641 (Pa. Commw. Ct. 2010) (holding that meeting minutes and other records received

by the Governor's representative on a non- profit corporation's board did not constitute “records”

under the RTKL because they were not “‘created, received or retained pursuant to law or in

connection with a transaction, business or activity of the agency.”’).

“For emails to qualify as records ‘of’ an agency, [one must] look to the subject-matter of

the records. Emails are not considered records of an agency simply because they are sent or

received using an agency email address or by virtue of their location on an agency computer.”

Meguerian, 86 A.3d at 930 (citing Easton Area Sch. Dist. v. Baxter, 35 A.3d 1259

(Pa.Cmwlth.2012). The emails must document a transaction or activity of the responding agency.

Id. (further citation omitted). To be a public record subject to disclosure, the records at issue

must relate to PGW’s transaction of business or activities, not that of another entity. See

Meguerian, 86 A.3d at 931; see also Bagwell, 76 A.3d 81 (“In determining whether an e-mail

constitutes a ‘record’ under the RTKL, the pertinent inquiry is whether the e-mail documents a

transaction or activity of the responding party—in other words, whether the e-mail ‘proves,

supports, [or] evidences’ an agency transaction or activity.”).

Mr. Stunder received the EAP records at issue in this appeal by virtue of his role on the

EAP Joint Electric and Gas Legislative Committee. The EAP records at issue here are comprised

of EAP’s agendas (not PGW’s agendas) and related attachments for EAP meetings (not PGW

meetings). (Stunder Attestation, ¶¶21-22; Fitzpatrick Affidavit; Exhibit “7”). Therefore, they

document the transactions and activities of EAP, not PGW. As such, they are not “records”

within the meaning of the RTKL and are not subject to public disclosure. As such, Mr. Spat’z

appeal should be denied.

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 7. PGW properly withheld trade secrets and confidential and proprietary
records of the Energy Association of Pennsylvania.

PGW properly withheld the following records because they are confidential and

proprietary records of the Energy Association of Pennsylvania:

• YAW034-048 (Records of the Energy Association of Pennsylvania; Joint Electric

& Gas Legislative Committee Meeting - Monday 1/11/2021; Agenda and related

attachments).

• ENERGY CHOICE051-059 (Records of the Energy Association of Pennsylvania;

Joint Electric & Gas Legislative Committee Meeting - Monday, 1/25/2021,

agenda and related attachments).

• YAW064-070, duplicated at ENERGY CHOICE063-069, PREEMPTION018-

027 (018, 019, and 020 are duplicates of 021, 022, and 023 due to human error)

(Records of the Energy Association of Pennsylvania; Joint Electric & Gas

Legislative Committee Meeting - Monday, 2/1/2021; agenda and related

materials).

(Stunder Attestation; Exhibit “7”; Fitzpatrick Affidavit). RTKL Section 708(b)(11)

exempts from disclosure “[a] record that constitutes or reveals a trade secret or confidential

proprietary information.” 65 P.S. § 67.708(b)(11). These terms are not interchangeable and are

analyzed separately for purposes of the exemption. See Office of the Governor v. Bari, 20 A.3d

634, 647-48 (Pa. Cmwlth. 2011). RTKL Section 102 provides the following definition of the

term “confidential proprietary information”:

Commercial or financial information received by an agency:

(1) which is privileged or confidential; and

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 (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. “In determining whether disclosure of confidential information will cause

‘substantial harm to the competitive position’ of the person from whom the information was

obtained, an entity needs to show: (1) actual competition in the relevant market; and[ ] (2) a

likelihood of substantial injury if the information were released.” Dep't of Corr. v. Maulsby, 121

A.3d 585, 590 (Pa. Cmwlth. 2015). In addition, “[c]ompetitive harm analysis is limited to harm

flowing from the affirmative use of proprietary information by competitors,” such that

“[c]ompetitive harm should not be taken to mean simply any injury to competitive position.” Id.

(internal citation and quotation marks omitted).

The records referenced in this section constitute trade secrets, and confidential and

proprietary information, of the Energy Association of Pennsylvania. In the Affidavit of Terrance

Fitzpatrick, the President & CEO of the Energy Association of Pennsylvania, he explains in

detail the reasons the above-referenced records withheld are trade secrets and confidential and

proprietary information of the Energy Association of Pennsylvania. (Fitzpatrick Affidavit). As

such, Mr. Spatz’s appeal should be denied, and PGW should not be required to take any further

action.

IV. CONCLUSION

It cannot be stressed enough that despite the plethora of legally sound reasons for denying

Mr. Spatz’s request, the most compelling reason for doing so is that the RTKL does not apply to

the records requested by Mr. Spatz because they are competitively sensitive under Section

2212(t) of the Natural Gas Choice and Competition Act. The Pennsylvania Legislature has

declared that PGW is to be treated as a competitive enterprise that must be able to function in a

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competitive marketplace in a manner distinct from other government agencies. Ignoring PGW’s

statutory exception to the RTKL applicable to the requested records would not only violate

Section 2212(t), but also erode the balance of the RTKL to the detriment of the public who

deserve thoughtful energy policy and strategies that take into consideration all of the public’s

needs and interests. In this case, hundreds of thousands ratepayer citizens of Philadelphia will

suffer if PGW is not permitted to function competitively as the Legislature intended.

WHEREFORE, Respondent, Philadelphia Gas Works, respectfully requests that the OOR

deny Mr. Spatz’s appeal in its entirety and not require PGW to take any further action in

connection with Mr. Spatz’s request.

Respectfully Submitted,

/s/ Brett A. Zahorchak

BRETT A. ZAHORCHAK, ESQUIRE

Identification No. 307867
Open Records Officer &
Assistant General Counsel
Philadelphia Gas Works
800 W. Montgomery Ave.
Legal Department - 4th Floor
Philadelphia, PA 19122
Telephone: (215) 684-6647
Facsimile: (215) 684-6798
Attorney for Respondent,
Dated: 4/30/2021 Philadelphia Gas Works

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