Pennsylvania Court Orders the Department of Health to Provide Copies of CHOW Filings and Transaction Documents to Reporter

On January 3, 2020, a Pennsylvania Court ordered the Pennsylvania Department of Health (“DOH”) to provide certain records regarding change of ownerships of thirty-five Pennsylvania long-term care facilities (the “Providers”) to a local reporter who sought copies of the documents as part of a local newspaper series and investigation into the state’s nursing homes. While the Court’s opinion was limited to the disclosure of the Providers’ change of ownership filings, the decision may have widespread implications for all licensed healthcare providers in Pennsylvania, as their regulatory filings may now be subject to disclosure pursuant to open records requests.

The reporter initially requested, through an open records request, all correspondence between the Department and the Providers’ owners regarding changes of ownership including all agreements, contracts, and leases, from the time period beginning January 1, 2016 through May 18, 2019 (the date of the request). DOH provided certain redacted records and withheld other records on the basis of trade secrets relating to confidential proprietary information. The reporter then filed an appeal with the Pennsylvania Office of Open Records.  In its decision, the Office of Open Records held in pertinent part that the business plans and operational information are confidential and proprietary but found that disclosure of the ownership information, leases, and employee biographical information was not likely to create significant competitive harm. The Providers appealed the decision of the Office of Open Records.

On appeal, the Providers argued that the information sought by the reporter included confidential proprietary information and trade secrets and thus were not subject to public disclosure under the state’s Right to Know Law. However, the Court upheld the Office of Open Records decision and found that the Providers did not demonstrate how release of the records, including ownership information, leases, and employee biographical information, would cause competitive harm.  The Providers can now appeal the Court’s opinion to the state Supreme Court.

To read the Court’s full opinion, please click here. For more information, please contact Hedy Silver Rubinger, Jessica Tobin Grozine, or Charmaine A. Mech.