Rep. Burns wins open records battle against PA Liquor Control Board
Commonwealth Court sides with Rep. Burns, rules liquor license records are public
HARRISBURG, June 16 – In a scathing rebuke of the Pennsylvania Liquor Control Board’s attempt to keep basic liquor license data a secret, the Commonwealth Court today ruled in favor of state Rep. Frank Burns that the agency must release the information he requested.
Burns, D-Cambria, asked the LCB in May 2019 for a listing of how many deactivated restaurant liquor licenses are available for auction in each county under Act 39 of 2016. The LCB denied Burns’ request, claiming the number of licenses was a “trade secret” and that it was exempt from disclosure because it was part of internal deliberations of the agency.
“The LCB acts like kings in a castle with a moat around it that no one can breach,” Burns said. “Today, the court ruled that moat should be drained so the public has access.”
In a 36-page opinion, Judge Christine Fizzano Cannon delivered a historic blow to the LCB’s attempt to keep basic liquor license data a secret. Cannon sided with the state Office of Open Records, which ruled in July 2019 that the LCB must provide Burns with the list of licenses eligible to be auctioned.
“We fail to discern how revealing raw data regarding the total number of licenses the Board could potentially select for auction in each county provides insight into any policymaking, recommendations or other deliberative processes of the Board,” Cannon wrote.
The court ruled that the LCB’s license auctions are a government function – not a “trade secret” – and that the LCB undermined its own argument that license data is proprietary by admitting it has previously released license tallies in some counties.
Burns believes the LCB tries to operate like a Wall Street firm, citing “trade secrets” and “proprietary information” as a reason not to hand over public documents, but in reality, they’re a government agency.
“We agree with (Burns) that the disputed information is not exempt from disclosure as a trade secret,” Cannon wrote. “The Board’s acknowledgement that its Press Office has occasionally made comments to reporters or the news media about the number of expired licenses available in particular counties, the very information sought here by (Burns), effectively precludes a finding that such information constitutes a ‘trade secret,’” Cannon wrote.
Burns hired and personally paid out of his own pocket for attorney Terry Mutchler, the founding executive director of the Office of Open Records, to represent him in the government transparency case.
“The court bought none -- not one iota -- of what the Liquor Control Board was trying to sell. The Right-to-Know Law is clear -- the information here is public record,” Mutchler said. “It is a very strong decision that advances the law by giving deeper guidance on the components of records that agencies consider pre-deliberative. And also, because it points out that although the LCB may be ‘business-like,’ it is not a business.”
“For reasons that defy logic, the LCB seems hell-bent on maintaining secretiveness when it comes to releasing information that the Office of Open Records – and now the courts – have clearly ruled should be made public,” Burns said. “There are times that I feel like David versus Goliath, but I was raised to always stand up for what’s right and fight for truth.”
Burns added that today’s victory is a win for mom-and-pop restaurant owners who have been undercut by the LCB’s license auctions, which he believes have devalued licenses in rural areas like Cambria County.
“Small businesses have a right to know how many liquor licenses are available in their county so they can make sound business decisions about whether to sell or hold onto their license,” Burns said.
With today’s clear and decisive ruling against the LCB, Burns called on the agency to simply provide the public information requested and not rack up even bigger legal bills by appealing the decision to the Pennsylvania Supreme Court.
“I can’t stand the arrogance of the LCB denying public information, then using taxpayer money to pay their attorneys to fight it in court,” Burns said. “Every taxpayer in Pennsylvania should be outraged at the money wasted by the LCB fighting to keep public documents a secret.”