Pa. Liquor Control Board’s refusal to share records with state lawmaker sparks court battle

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A state lawmaker is finding his quest for records to help him decide whether to support a bill that would increase the number of restaurant liquor licenses has led him into a court battle with a state agency.

Using the state’s Right to Know Law process, state Rep. Frank Burns, D-Cambria County, asked the Pennsylvania Liquor Control Board for the number of out-of-service or revoked restaurant liquor licenses in each county that are able to be auctioned.

He sought the information in May to help him decide whether to support a piece of legislation that seeks to convert old hotel liquor licenses into restaurant licenses, according to a news release issued by his office.

The PLCB denied his request, calling that information a trade secret and confidential proprietary information. Burns appealed the agency’s denial to the state’s Office of Open Records, which ordered the records released. The PLCB then appealed that denial to Commonwealth Court, which is where the matter sits now.

Burns has retained former Office of Open Records director Terry Mutchler to represent him in this dispute.

“I was hoping the LCB would see the light and this wouldn’t go to court,” Burns said. “But since they chose this route, I’ve hired the best person that I could possibly find. Unlike the LCB, I won’t be paying my attorney using taxpayer dollars.”

Burns, whose mother owns a restaurant license although he is not listed as a manager or owner on it, plans to pay for Mutchler’s bills out of his own pocket.

Liquor control board spokesman Shawn Kelly defended the agencies’ decision to keep the records confidential.

“To preserve the short- and long-term value of licenses, we’ll refrain from commenting on the remaining pool of licenses that may be auctioned,” he said. “We believe the information sought by Representative Burns is proprietary and trade secret, and that releasing it will have significant impact on the [value of the restaurant liquor licenses held by individuals or businesses.] As such, we believe defending our position is responsible both to Pennsylvania taxpayers that benefit from our operations and to license holders looking to preserve the value of their licenses.”

Act 39 of 2016 authorized the liquor control board to auction all expired or rescinded restaurant licenses since the year 2000. At that time, that made about 1,200 licenses from counties across the state able to be auctioned. Board spokesman Shawn Kelly said the full list of the number of those licenses in each county has never been made public.

The PLCB auctions off a couple or few dozen restaurant licenses at a time, requiring a minimum bid of $25,000. To date, nine auctions have been held with the bids for the most recent one to be opened on Thursday. Over the course of the last three years, about 300 restaurant licenses have been auctioned, generating $28.1 million with another $2.3 million held in escrow pending license approvals by local officials.

Mutchler maintains the records Burns seeks are “a basic public record and it’s a bit sad that a state that has built a strong reputation for transparency is fighting over basic and black letter public record.” She said in most states, an elected official would not be required to file a formal record request and instead, would automatically be provided records needed to do his or her job.

“My hope is that the seasoned lawyers at the LCB and I can hash this out without costing taxpayers more money in a court argument,” Mutchler said. “It’s unnecessary when the law is clear and the Office of Open Records reviewer pointed out the LCB’s faulty arguments and ordered release.”