UnitedHealthcare of Pennsylvania, Inc. v. DHS ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
UnitedHealthcare :
of Pennsylvania, Inc., :
:
Petitioner :
:
v. : No. 824 C.D. 2017
: Argued: April 10, 2018
Pennsylvania Department :
of Human Services, :
:
Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: May 31, 2018
UnitedHealthcare of Pennsylvania, Inc. (UnitedHealthcare) petitions
for review from a final determination of the Pennsylvania Office of Open Records
(OOR), which denied its appeal from the Commonwealth of Pennsylvania,
Department of Human Services’ (DHS) partial denial of its request under the Right-
to-Know Law (RTKL).1 UnitedHealthcare contends that OOR erred or abused its
discretion by accepting DHS’s narrow interpretation of its request, ruling on
exemptions without the aid of an exemption log or in camera review, applying
incorrect findings applicable to another requester’s request, and finding that DHS
met its burden of proving nine emails were exempt under the noncriminal
investigation exception. Upon review, we affirm in part and vacate in part and
1
Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
remand to OOR to reconsider the applicability of DHS’s proffered exemptions after
requiring and reviewing an exemption log of the documents withheld.
I. Background
This matter stems from a request for proposal (RFP) conducted by
DHS, pursuant to Section 513 of the Commonwealth Procurement Code
(Procurement Code),2 known as Original RFP No. 06-15 and Reissued RFP No. 06-
15 relating to the Physical HealthChoices Program.3 UnitedHealthcare was one of
eleven offerors that submitted proposals. However, DHS did not select
UnitedHealthcare to enter into contract negotiations. UnitedHealthcare protested the
bid.
On February 7, 2017, UnitedHealthcare submitted a nine-item RTKL
request for documents relating to the Reissued RFP, including proposal, evaluation
and Office of Inspector General (OIG) investigation documents (Request).
Specifically, UnitedHealthcare requested:
[A]ll public records relating to, received or produced by or
on behalf of the Commonwealth of Pennsylvania, its
agencies, employees and agents related to the Reissued
RFP #06-15, including, but not limited to, the following,
regardless of the form of the record:
a) All records and documents relating to the debriefing
meeting(s) between DHS representatives and
representatives of Pennsylvania Health & Wellness, Inc.
(“PA H&W”) in November and/or December 2016 at
2
Section 513 of the Procurement Code governs competitive sealed proposals.
62 Pa. C.S. §513.
3
This matter and the matters listed at Nos. 348 C.D. 2017, 543 C.D. 2017 and 660 C.D.
2017 all stem from RTKL requests seeking documents in connection with Original and/or Reissued
RFP No. 06-15. These cases were argued seriately before the panel.
2
which the error in scoring and/or rescoring of Small
Diverse Business (“SDB”) proposals was discussed;
b) All records and documents relating to any
communication by or between Lisa Allen, Sallie Rodgers,
any representative(s) of PA H&W and/or any
representative(s) of any other offeror(s) involved in the
procurement pursuant to the Reissued RFP #06-15 in any
way relating to the selection or potential selection of
offerors from November 2016 to the present;
c) All records and documents relating to the decision of
PA H&W to withdraw the portion of its proposal with
regard to the Northeast and Northwest Zones under the
Reissued RFP #06-15;
d) All records and documents relating to any
communication by or between any representative(s) of
DHS and any representative(s) of PA H&W concerning
the decision by DHS to permit PA H&W to modify its
original proposal by removing the portion of its proposal
pertaining to the Northeast and Northwest Zones under the
Reissued RFP #06-15;
e) All records and documents relating to any
communication by or between any representative(s) of
DHS and any representative(s) of any other offeror under
the Reissued RFP #06-15 with regard to the withdrawal of
the portion of the proposal from PA H&W for the
Northeast and Northwest Zones under the Reissued RFP
#06-15 and/or the decision by DHS to permit that
modification;
f) All records and documents relating to the decision of
DHS to select other offerors in lieu of PA H&W in the
Northeast or Northwest Zones due to the modification of
PA H&W’s original proposal to remove the portions of
that proposal relating to the Northeast and Northwest
Zones under the Reissued RFP #06-15;
g) All records and documents relating to any
communication by or between any representative(s) of
DHS and any representative(s) of the Office of the
3
Governor regarding the procurement and services
pursuant to the Reissued RFP #06-15, the SDB scoring
error, and the rescoring after discovery of the SDB scoring
error and the withdraw [sic] of the portions of the PA
H&W proposal relating to the Northeast and Northwest
Zones;
h) All records and documents relating to any
communication by or between any representative(s) of
DHS and any representative(s) of the [OIG] regarding the
procurement and services pursuant to the Reissued RFP
#06-15, the SDB scoring error, the rescoring after
discovery of the SDB scoring error and the withdraw [sic]
of the portions of the PA H&W proposal relating to the
Northeast and Northwest Zones; and
i) All records and documents relating to any
communication by or between any representative(s) of
DHS and the [OIG] with regard to any investigation(s) of
the procurement in connection with the original RFP #06-
15 and/or Reissued RFP #06-15.
Reproduced Record (R.R.) at 26a-27a.
DHS partially granted and partially denied the Request. In response to
Items (a), (c), (d), (e), (f) and (g), DHS withheld proposal information as temporarily
exempt until the contract is awarded, and the evaluation committee documents as
permanently exempt pursuant to the procurement exemption, Section 708(b)(26) of
the RTKL, 65 P.S. §67.708(b)(26). DHS also withheld documents responsive to
Items (h) and (i) under the noncriminal investigation exception, Section 708(b)(17)
of the RTKL, 65 P.S. §67.708(b)(17). DHS asserted additional grounds for
exemption because some records also contained internal, predecisional
deliberations, Section 708(b)(10) of the RTKL, 65 P.S. §67.708(b)(10), and personal
notes, Section 708(b)(12) of the RTKL, 65 P.S. §67.708(b)(12). To the extent it
4
granted the Request, DHS redacted personal identification information pursuant to
Section 708(b)(6)(i)(A) of the RTKL, 65 P.S. §67.708(b)(6)(i)(A). R.R. at 18a-24a.
UnitedHealthcare appealed to OOR, challenging the denials and
arguing that DHS failed to meet its burden of proving that the requested records are
exempt.
OOR invited the parties to supplement the record and directed DHS to
notify any third parties of their ability to participate in this appeal. DHS submitted
a position statement reiterating its grounds for denial and asserted new grounds for
withholding the records, including the attorney-client privilege and attorney-work-
product doctrine.4 In support, DHS submitted the affidavits of Erin Slabonik, DHS
Division Director of Managed Care (Slabonik Affidavits), and David Todd, the
Deputy Inspector General (Todd Affidavit).
UnitedHealthcare also submitted a position statement and affidavits. It
requested “a log of all records that have been withheld or redacted” and an in camera
review. R.R. at 152a, 170a.
OOR permitted offerors that submitted proposals to participate and
submit position papers. Those that participated argued that the RTKL protected the
requested documents related to their proposals from disclosure under multiple
exemptions, including the procurement, trade secret and confidential, proprietary
information exemptions, and presented affidavits in support.
OOR made additional requests for evidence and clarification. In
response, DHS provided a supplemental affidavit of Slabonik and an affidavit and
supplemental affidavit of Andrea Bankes, DHS Open Records Officer (Bankes
4
Commonwealth agencies are permitted to assert new grounds for denying a request on
appeal to OOR. See Levy v. Senate of Pennsylvania, 65 A.3d 361, 383 (Pa. 2013).
5
Affidavit). UnitedHealthcare responded with supplementary position statements
and additional affidavits.
On May 22, 2017, OOR issued its final determination. OOR denied
UnitedHealthcare’s appeal. OOR held that DHS reasonably interpreted Items (a),
(c), (d), (e), (f) and (g) as “seeking records that would be included as part of the
offerors’ proposals and records used by the Evaluation Committee,” which are
exempt under the procurement exemption, Section 708(b)(26) of the RTKL. OOR
Final Determination, 5/22/17, at 7. OOR concluded that DHS properly withheld
records or portions of records responsive to Items (a), (c), (d), (e), (f) and (g)
pursuant to the procurement exemption. Id. at 7-12. OOR also determined that DHS
properly withheld documents responsive to Items (h) and (i) as noncriminal
investigation documents pursuant to Section 708(b)(17) of the RTKL. Id. at 13-15.
In reaching its decision, OOR considered and relied upon DHS’s affidavits.
UnitedHealthcare petitioned for review. This Court granted
intervention to the offerors that participated in OOR proceedings, namely: Geisinger
Health Plan, Inc., Vista Health Plan, Inc., and PA H&W (collectively, Intervenors).
II. Issues
In this appeal,5 UnitedHealthcare contends that OOR erroneously relied
upon DHS’s purported interpretation of its Request where the plain language of the
Request supports a different interpretation. In addition, it claims that OOR erred or
abused its discretion by ruling on exemptions without requiring an exemption log or
in camera review to establish the basis upon which to consider such exemptions. It
further argues that OOR’s final determination is arbitrary and capricious and
5
This Court exercises plenary, de novo review of OOR’s determination in this matter.
Bowling v. Office of Open Records, 75 A.3d 453, 477 (Pa. 2013).
6
constitutes an abuse of discretion because OOR mistakenly refers to a request made
by another requester. Finally, UnitedHealthcare asserts that OOR erred in finding
that DHS met its burden of proving that nine emails were exempt under the
noncriminal investigation exception.
III. Discussion
A. Interpretation of the Request
First, UnitedHealthcare claims that OOR improperly accepted DHS’s
proffered interpretation of UnitedHealthcare’s Request regarding Items (a), (c), (d),
(e), (f) and (g) as requesting “proposals or records of a proposal Evaluation
Committee.” OOR’s Final Determination at 7-8. OOR found the interpretation
“reasonable” based on the language of the Request and the Slabonik Affidavits that
DHS routinely received such requests. Neither the Request nor Slabonik Affidavits
support DHS’s overly restrictive interpretation. UnitedHealthcare maintains that all
of the items in its Request “related to communications with or decisions from third
parties, after the submission of proposals.” Petitioner’s Brief at 11 (emphasis in
original). “UnitedHealthcare sought documents relating to communications
between DHS and other bidders after the scoring of the Evaluation Committee was
completed.” Id. at 11-12 (emphasis in original). UnitedHealthcare also sought
documents relating to a meeting between DHS representatives and one successful
offeror, PA H&W, which took place on December 19, 2016. UnitedHealthcare
asserts that such documents are not proposal documents or records of a proposal
Evaluation Committee. Simply because DHS routinely receives RTKL requests
seeking proposal and evaluation records from other requesters does not mean that
DHS can limit all requests related to an RFP so narrowly. DHS’s interpretation is
contradicted by Slabonik, who attested that UnitedHealthcare did not request
7
“evaluation documents.” R.R. at 135a. OOR’s acceptance of DHS’s proffered
interpretation without any proof constitutes a violation of Section 708 of the RTKL,
65 P.S. §67.708. On this basis, UnitedHealthcare requests a remand with
instructions for OOR to reconsider the interpretation of UnitedHealthcare’s RTKL
Request.
Under the RTKL, information is only subject to disclosure if it is a
“public record.” Section 301(a) of the RTKL, 65 P.S. §67.301(a). Records in
possession of a Commonwealth agency are presumed to be public unless they are:
(1) exempt under Section 708 of the RTKL; (2) “protected by a privilege”; or (3)
exempt under any other Federal or State law or regulation or judicial order or decree.
Section 305(a) of the RTKL, 65 P.S. §67.305(a).
The first step in determining whether an exemption under Section
708(b) applies is to compare the RTKL request with the language of the asserted
exemption. Heavens v. Department of Environmental Protection, 65 A.3d 1069,
1075 (Pa. Cmwlth. 2013). “A written request should identify or describe the records
sought with sufficient specificity to enable the agency to ascertain which records are
being requested . . . .” Section 703 of the RTKL, 65 P.S. §67.703. To determine
whether a request is sufficiently specific, courts examine:
(1) the subject matter of the request; (2) the scope of the
documents sought; and (3) the timeframe for the records
sought. While this test is a flexible one, the requirement
that a requester identify the subject matter of a request
necessitates that a requester “identify the transaction or
activity of the agency for which the record is sought.” In
addition, the requirement that a requester identify the
scope of the documents sought necessitates that a
requester “identify a discrete group of documents either by
type . . . or recipient.” Finally, although the timeframe
element of the “sufficiently specific” test is the most fluid
when evaluating a requester’s request, the request should
8
identify “a finite period of time for which records are
sought.”
Office of the District Attorney of Philadelphia v. Bagwell, 155 A.3d 1119, 1143 (Pa.
Cmwlth.), appeal denied, 174 A.3d 560 (Pa. 2017) (citations omitted) (Bagwell IV);
see Askew v. Pennsylvania Office of the Governor, 65 A.3d 989, 992 (Pa. Cmwlth.
2013). Although an agency may interpret the meaning of a request for records, that
interpretation must be reasonable and construed within the context of the request.
See Pennsylvania Department of Conservation and Natural Resources v. Vitali (Pa.
Cmwlth., No. 1013 C.D. 2014, filed July 9, 2015), slip op. at 10;6 see, e.g., Spatz v.
City of Reading (OOR, Dkt. No. AP 2013-0867, filed July 1, 2013); Signature
Information Solutions, Inc. v. City of Warren (OOR, Dkt. No. AP 2012-0433, filed
April 20, 2012).7
An agency bears the burden of proving, by a preponderance of the
evidence, that a record is protected from disclosure under one of the enumerated
exemptions or contains privileged material. Section 708(a)(1) of the RTKL,
65 P.S. §67.708(a)(1); Bagwell IV, 155 A.3d at 1130; McGowan v. Pennsylvania
Department of Environmental Protection, 103 A.3d 374, 380 (Pa. Cmwlth. 2014).
A preponderance of the evidence is a finding “that the existence of a contested fact
is more probable than its nonexistence.” Pennsylvania State Troopers Association
v. Scolforo, 18 A.3d 435, 439 (Pa. Cmwlth. 2011) (internal quotation marks
omitted).
6
Section 414 of this Court’s Internal Operating Procedures authorizes the citation of
unreported panel decisions issued after January 15, 2008, for their persuasive value, but not as
binding precedent. 210 Pa. Code §69.414.
7
Decisions of administrative boards or tribunals have no precedential value on this Court.
Scott v. Delaware Valley Regional Planning Commission, 56 A.3d 40, 44 (Pa. Cmwlth. 2012).
9
An agency may present sufficient evidence by the submission of
affidavits. Bagwell IV, 155 A.3d at 1120; McGowan, 103 A.3d at 381; Heavens, 65
A.3d at 1073.
Affidavits are the means through which a governmental
agency . . . justifies nondisclosure of the requested
documents under each exemption upon which it relied
. . . . The affidavits must be detailed, nonconclusory, and
submitted in good faith . . . . Absent evidence of bad faith,
the veracity of an agency’s submissions explaining
reasons for nondisclosure should not be questioned.
McGowan, 103 A.3d at 381 (quoting Office of the Governor v. Scolforo, 65 A.3d
1095, 1103 (Pa. Cmwlth. 2013) (citation omitted) (Scolforo)). However, conclusory
affidavits, standing alone, will not satisfy an agency’s burden of proof under the
RTKL. Id. Moreover, the affidavit must be specific enough to permit OOR or a
reviewing court to ascertain whether the claimed exemption applies to the records
requested. Id.
UnitedHealthcare claims it was seeking documents “related to
communications with or decisions from third parties, after the submission of
proposals” and “relating to communications between DHS and other bidders after
scoring of the Evaluation Committee was completed.” Petitioner’s Brief at 11-12
(emphasis in original). However, UnitedHealthcare’s actual Request was far more
extensive than that. See R.R. at 26a-27a.
DHS interpreted the Request as seeking documents submitted as part of
offerors’ proposals and evaluation documents that relate to DHS’s decision to select
offerors and offered affidavits in support. R.R. at 18a-24a. Slabonik interpreted the
Request as seeking “documents included as part of the offerors’ proposals and
documents that would include scoring and evaluation sheets, used by the Evaluation
Committee” as well as “correspondence, announcements, selection memorandum,
10
news releases, and similar documents related to the re-scoring but not evaluation
documents.” R.R. at 83a; accord R.R. at 84a. The Slabonik Affidavits are based on
Slabonik’s reading of the Request and her experience as DHS’s Division Director.
R.R. at 81a, 84a, 134a. Slabonik attested that DHS “routinely receives RTKL
requests for the scoring and evaluation records . . . .” R.R. at 84a.
Upon review of the Request and the Slabonik Affidavits, DHS’s
interpretation that UnitedHealthcare was seeking documents related to the proposals
and evaluation records was reasonable.8
B. Exemption Log
Next, UnitedHealthcare contends that OOR ignored
UnitedHealthcare’s repeated requests to require an exemption log of the withheld
documents and failed to conduct an in camera review of those documents to
determine whether the procurement exemption asserted for Items (a), (c), (d), (e), (f)
and (g) applied. Because DHS misinterpreted its Request and did not meet its burden
of proving the records were exempt, OOR’s failure to obtain an exemption log or
perform in camera review was a violation of Section 708 of the RTKL. According
to UnitedHealthcare, these evidentiary omissions are particularly glaring in light of
the fact that another offeror requested and was granted this same relief from the same
appeals officer in connection to records related to the same RFP. See Aetna Better
Health of Pennsylvania v. Department of Human Services (OOR, Dkt. No. AP 2017-
0572, filed July 14, 2017) (the appeals officer, following examination of the
exemption log and reviewing records in camera, ordered DHS to provide 32
8
If UnitedHealthcare was truly seeking documents after submission of proposals and after
scoring, or documents related to the December 19, 2016, meeting, it should have made its request
more specific. See Section 703 of the RTKL, 65 P.S. §67.703; Bagwell IV, 155 A.3d at 1143;
Askew, 65 A.3d at 992.
11
additional documents previously withheld). The appeals officer would not have
discovered DHS’s violations without the aid of an exemption log and in camera
review. Id. Without those same safeguards here, UnitedHealthcare cannot ascertain
whether responsive records were omitted and this Court cannot determine whether
the claimed exemption applies to all records responsive to its Request. Therefore,
UnitedHealthcare asks this Court to vacate and remand to OOR to reconsider the
applicability of DHS’s proffered exemptions after requiring an exemption log and
conducting in camera review.
In addition to affidavits, an agency may justify its exemptions with an
item-by-item indexing system, commonly referred to as a privilege or exemption
log.9 McGowan, 103 A.3d at 381; Heavens, 65 A.3d at 1075-77. Such a log
“typically lists the date, record type, author, recipients, and a description of the
withheld record . . . .” McGowan, 103 A.3d at 381. A log “can serve as sufficient
evidence to establish an exemption, especially where the information in the log is
bolstered with averments in an affidavit.” Id.; see Heavens, 65 A.3d at 1075. “An
index, even one containing minimal description, offers a tool for a fact-finder
reviewing corresponding records.” Office of the Governor v. Davis, 122 A.3d 1185,
1194 (Pa. Cmwlth. 2015).
In Bowling v. Office of Open Records, 990 A.2d 813, 825 nn.12-13 (Pa.
Cmwlth. 2010), aff’d, 75 A.3d 453 (Pa. 2013), this Court recognized the utility of
9
Although the terms are used interchangeably, a “privilege log” applies when a privilege
is asserted; an “exemption log” applies when an exemption is asserted. See McGowan, 103 A.3d
at 378; see also In re Thirty-Third Statewide Investigating Grand Jury, 86 A.3d 204, 207 n.2 (Pa.
2014) (recognizing that the term “privilege log” pertained to the attorney-client privilege and the
work-product exemption under Rule 573(G) of the Pennsylvania Rules of Criminal Procedure, Pa.
R. Crim. P. 573(G). This indexing system has also been referred to as a “Vaughn index,” based
on recognition of the approach in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). See Scolforo,
65 A.3d at 1104 n.13.
12
“an item-by-item indexing system which correlates to a specific . . . exemption,” but
cautioned that “a satisfactory index could undermine the exemption and, in those
cases, agencies may proffer generic determinations for nondisclosure.” In such
cases, agencies may “justify their exemptions on a . . . category-of-document basis.”
Bowling, 990 A.2d at 825 n.13. Under the category-of-document methodology, the
classification must enable a court to determine how each category of documents, if
disclosed, would interfere with the agency’s duty not to disclose exempt public
records. Id. However, “[i]t is not enough to include . . . a list of subjects” to which
an exemption may have related. Scolforo, 65 A.3d at 1104 (emphasis added). An
affidavit must be specific enough to permit OOR or this Court to evaluate the
exemptions as they apply to particular documents. Id.
OOR has the authority to request production of an exemption log and
to conduct in camera review of documents where an exemption or privilege has been
asserted. Office of Open Records v. Center Township, 95 A.3d 354, 369-70 (Pa.
Cmwlth. 2014). “Records reviewed in camera may serve as a sufficient basis for a
fact-finder to assess whether an exemption applies.” Davis, 122 A.3d at 1194.
However, where an agency sufficiently explains the basis for nondisclosure through
an affidavit, a log is not necessary. See Chambersburg Area School District v.
Dorsey, 97 A.3d 1281, 1289 (Pa. Cmwlth. 2014).
In Pennsylvania Department of Education v. Bagwell, 131 A.3d 638
(Pa. Cmwlth. 2016) (Bagwell III), we considered the sufficiency of affidavits to
establish the attorney-work-product privilege. There, the Pennsylvania Department
of Education (Department) appealed a final determination of OOR that directed the
disclosure of certain emails pursuant to the RTKL. In support, the Department
presented affidavits regarding the content of the requested documents, arguing that
13
the documents were protected by the attorney-work-product doctrine. However, the
Department did not submit an exemption log. We found the Department’s affidavits
to be “conclusory and vague” because they did not “describe the records with any
particularity as to how the privilege supports non-disclosure or redaction . . . of
allegedly responsive records.” Id. at 658 (emphasis added). “As a result, neither
OOR nor this Court had sufficient information to evaluate the exemptions.” Id.
(citing Davis, 122 A.3d at 1194).
Here, UnitedHealthcare was seeking documents related to the proposals
and evaluation records. DHS withheld the documents responsive to Items (a), (c),
(d), (e), (f) and (g) of the Request on the basis of Section 708(b)(26) of the RTKL,
which provides:
Except as provided in subsections (c) and (d), the
following are exempt from access by a requester under this
act:
***
(26) A proposal pertaining to agency procurement
or disposal of supplies, services or construction prior to
the award of the contract or prior to the opening and
rejection of all bids; financial information of a bidder or
offeror requested in an invitation for bid or request for
proposals to demonstrate the bidder’s or offeror’s
economic capability; or the identity of members, notes and
other records of agency proposal evaluation committees
established under 62 Pa. C.S. §513 (relating to
competitive sealed proposals).
65 P.S. §67.708(b)(26) (emphasis added).
In support, DHS presented evidence in the form of affidavits. The
Slabonik Affidavits describe the evaluation process, how the evaluation committee
evaluated the offerors, how DHS selected offerors for contract negotiations, and how
14
DHS interpreted and responded to the Request. R.R. at 84a-85a, 139a-42a. “[T]he
documents pertaining to the evaluation committee contain Evaluation Committee
members’ notes that are used solely for that individual member’s use in evaluating
the offerors’ proposals.” R.R. at 84a, 136a, 141a. The Slabonik Affidavits attest
that “[t]he Evaluation Committee materials and member names are to remain
confidential in order to shield the internal procurement process against external
threats to its integrity in order for the evaluators to freely express their opinions.”
R.R. at 85a, 142a. The responsive records include “offerors’ proposals and
documents that would include the scoring and evaluation sheets, used by the
Evaluation Committee in evaluating the technical submittals of the offerors’
proposals . . . .” R.R. at 83a, 135a. The Slabonik Affidavits then conclude that the
proposal and evaluation documents are exempt pursuant to Section 708(b)(26) of the
RTKL. R.R. at 86a, 143a.
In addition, Bankes attested in her affidavit that “the only documents
withheld were for the following: a. Proposal documents, pursuant to 65
P.S. §67.708(b)(26); b. Evaluation Committee records, pursuant to 65
P.S. §67.708(b)(26); and c. correspondence under the attorney-client and attorney-
work-product doctrine, pursuant to [Section 102 of the RTKL,] 65 P.S. §67.102
(definition of privilege).” R.R. at 144a-45a. OOR determined that the affidavits
constituted sufficient evidence justifying nondisclosure under the procurement
exemption and it did not request the production of an exemption log or review the
documents in camera.
Upon review, the affidavits primarily describe the general subject
matter of the documents requested, i.e., proposal and evaluation documents.
Although the Slabonik Affidavits refer to certain categories of documents, such as
15
the offerors’ proposals, scoring and evaluation sheets, which are clearly exempt, the
affidavits do not sufficiently describe or identify other types of documents
responsive to the Request. Without a description of the particular documents
withheld, other than DHS’s interpretation that the documents related to the proposals
and evaluation records, this Court is unable to assess whether all documents
responsive to the Request qualify for exemption and nonproduction. Thus, with
regard to the documents responsive to Items (a), (c), (d), (e), (f) and (g) of the
Request that DHS withheld on the basis of Section 708(b)(26) of the RTKL, we find
it necessary to vacate this portion of the final determination and remand to OOR to
reconsider the applicability of DHS’s proffered exemptions after requiring an
exemption log of those documents.
C. Arbitrary and Capricious
Next, UnitedHealthcare contends that OOR’s final determination is
arbitrary and capricious and constitutes an abuse of discretion because it mistakenly
refers to a request made by another requester, Aetna Better Health of Pennsylvania
(Aetna). The Slabonik Affidavits evidence a cut-and-paste job from Aetna’s RTKL
request, as they mistakenly refer to Aetna and its nonselection for contract
negotiations. R.R. at 83a; see id. at 134a. OOR repeated this error by referencing
these same paragraphs in its final determination. The inclusion of these factual
assertions are completely irrelevant to UnitedHealthcare’s Request and appeal.
“An abuse of discretion is more than just an error in judgment . . . .”
Commonwealth v. Smith, 673 A.2d 893, 895 (Pa. 1996); accord Belleville v. David
Cutler Group, 118 A.3d 1184, 1195 (Pa. Cmwlth. 2015). An abuse of discretion
occurs where the “judgment exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias, or ill will.” Smith; 673 A.2d at 895; accord Tullytown
16
Borough v. Armstrong, 129 A.3d 619, 622 (Pa. Cmwlth. 2015); Belleville, 118 A.3d
at 1195. To be arbitrary and capricious, there must be a “willful and deliberate
disregard” of the evidence submitted “which one of ordinary intelligence could not
possibly have avoided in reaching a result.” Pocono Manor Investors, LP v.
Pennsylvania Gaming Control Board, 927 A.2d 209, 216 (Pa. 2007).
Here, OOR correctly cited numerous paragraphs of the Slabonik
Affidavits in support of its determination. It also cited the following two paragraphs,
which refer to Aetna:
20. Initially, the [R]equester’s client, Aetna . . . was not
selected for contract negotiations in all five zones per the
selection letter issued on November 18, 2016.
***
23. Based on the recalculated scores, Aetna was not
selected for contract negotiations in any of the five zones
per the selection letter issued on December 22, 2016.
OOR’s Final Determination, at 9. OOR’s mistaken reference to two immaterial
paragraphs does not demonstrate that the judgment exercised was “manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill will.” Tullytown, 129
A.3d at 622. The challenged paragraphs have no relevance as to whether the records
requested by UnitedHealthcare are subject to disclosure under the RTKL. Rather,
the two paragraphs merely state that another offeror was not selected for negotiations
in DHS’s rescinded November selections and the December selections. Otherwise,
OOR’s final determination clearly and accurately refers to the Request at hand.
OOR’s inclusion of two immaterial paragraphs pertaining to another requester in the
context of numerous accurate paragraphs pertaining to the instant Request amounts
to harmless error. Such does not rise to the level of a “willful and deliberate
17
disregard” of the evidence “which one of ordinary intelligence could not possibly
have avoided in reaching a result.” Pocono Manor, 927 A.2d at 216.
D. Noncriminal Investigation Exception
Next, UnitedHealthcare argues that OOR erred by ignoring DHS’s
shifting explanations for withholding nine emails exchanged between DHS and OIG.
OOR found that DHS met its burden, but failed to examine conflicting evidence
presented by DHS’s own witnesses or address how DHS’s position shifted over time.
Section 708(b)(17) of the RTKL exempts from public disclosure
records relating to a noncriminal investigation. 65 P.S. §67.708(b)(17).
Specifically, Section 708(b)(17) exempts:
A record of an agency relating to a noncriminal
investigation, including:
***
(ii) Investigative materials, notes, correspondence
and reports.
***
(iv) A record that, if disclosed, would do any of the
following:
(A) Reveal the institution, progress or result
of an agency investigation, except the imposition of a fine
or civil penalty, the suspension, modification or revocation
of a license, permit, registration, certification or similar
authorization issued by an agency or an executed
settlement agreement unless the agreement is determined
to be confidential by a court.
65 P.S. §67.708(b)(17)(ii) and (vi)(A).
Here, UnitedHealthcare requested the following records:
18
h) All records and documents relating to any
communication by or between any representative(s) of
DHS and any representative(s) of [OIG] regarding the
procurement and services pursuant to the Reissued RFP
#06-15, the SDB scoring error, the rescoring after
discovery of the SDB scoring error and the withdraw of
the portions of the PA H&W proposal relating to the
Northeast and Northwest Zones; and
i) All records and documents relating to any
communication by or between any representative(s) of
DHS and [OIG] with regard to any investigation(s) of the
procurement in connection with the original RFP #06-15
and/or Reissued RFP #06-15.
R.R. at 33a.
DHS identified nine emails reflecting communications that occurred
between DHS and OIG. DHS excluded these emails because they relate to the
institution, progress, or result of an agency investigation. In support, DHS presented
the Todd Affidavit, which states that OIG conducts investigations of agencies
pursuant to the Pennsylvania Executive Order 1987-7 and explains in detail how
OIG conducts its investigations. R.R. at 87a-91a. The Todd Affidavit describes the
types of records it obtains during an investigation, including “records from agencies,
witnesses, and other sources.” R.R. at 88a. OIG will “review the records for
information related to the complaint or matter being investigated; conduct interviews
of witnesses and subjects of the investigation; conduct on-site inspections or
surveillance; and, conduct other traditional investigative activities as necessary to
obtain evidence relating to the complaint or matter being investigated.” R.R. at 88a-
89a.
With regard to the investigation of the Reissued RFP in this matter, OIG
reviewed all documents obtained from DHS and from other witnesses or sources.
19
R.R. at 89a-90a. The documents relate to communications by or between DHS and
OIG relating to the RFPs, including correspondence. R.R. at 90a. The Todd
Affidavit states that disclosure of the responsive records would reveal information
regarding the institution, progress, or result of the investigation. R.R. at 90a.
“Allowing the unnecessary disclosure of this information would impair the OIG
Investigation and future investigations because it discourages individuals from
providing information.” R.R. at 90a. The sum of these details shows that the
requested documents satisfy the elements needed to qualify as exempt noncriminal
investigation documents.
UnitedHealthcare asserts that DHS shifted its position and abandoned
any reliance on the use of the noncriminal investigation exemption to protect the
nine responsive emails. Petitioner’s Brief at 16. In support, UnitedHealthcare refers
to the Supplemental Affidavit of Slabonik and the Bankes Affidavit, which make no
reference at all to the noncriminal investigation exemption. See R.R. at 134a-36a,
144a-45a. However, these affidavits were offered in response to OOR’s request for
additional evidence and clarification regarding Items (a) through (g); they do not
pertain to the Items (h) and (i) of the Request. See R.R. at 133a-34a.
OOR asked DHS to provide a supplemental affidavit for Bankes
pertaining specifically to Items (h) and (i) to support DHS’s use of the noncriminal
investigation exemption with regard to the nine emails. R.R. at 172a-73a. In the
Supplemental Affidavit offered, Bankes clarified that the noncriminal investigation
exemption of the RTKL applied to nine emails responsive to Items (h) and (i). R.R.
at 172a, 177a-78a. She explained that the emails are correspondence from OIG to
DHS legal counsel regarding OIG’s investigation relating to the RFPs in question.
R.R. at 177a. Contrary to UnitedHealthcare’s assertions, DHS never wavered from
20
its position that the noncriminal investigation exception of the RTKL protected
documents responsive to Items (h) and (i) from disclosure. Thus, OOR properly
concluded that DHS’s affidavits constituted sufficient evidence to withhold these
records.
IV. Conclusion
For the above-stated reasons, we conclude that DHS’s interpretation of
UnitedHealthcare’s Request was reasonable. OOR’s inclusion of two immaterial
statements did not render its decision arbitrary and capricious. DHS sufficiently
proved that nine emails exchanged between DHS and OIG were exempt under the
noncriminal investigation exception. Thus, we affirm OOR’s final determination in
this regard.
However, with regard to the records responsive to Items (a), (c), (d),
(e), (f) and (g) of the Request, DHS’s affidavits, standing alone, are not sufficient to
support the asserted exemptions. Thus, we vacate this portion of OOR’s final
determination and remand for the production of an exemption log of the documents
withheld. OOR shall reconsider the applicability of DHS’s proffered exemptions
under Section 708(b)(26) of the RTKL and issue a new determination as to whether
the documents are protected from disclosure.
Accordingly, we affirm in part and vacate in part and remand to OOR
for further proceedings consistent with this opinion.
MICHAEL H. WOJCIK, Judge
Judge Fizzano Cannon did not participate in the decision of this case.
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
UnitedHealthcare :
of Pennsylvania, Inc., :
:
Petitioner :
:
v. : No. 824 C.D. 2017
:
Pennsylvania Department :
of Human Services, :
:
Respondent :
ORDER
AND NOW, this 31st day of May, 2018, the Final Determination of the
Office of Open Records (OOR), dated May 22, 2017, is AFFIRMED IN PART and
VACATED IN PART and this matter is REMANDED to OOR in accordance with
the foregoing opinion. On remand, OOR shall: (1) direct the Respondent
Pennsylvania Department of Human Services (DHS) to supplement the certified
record with an exemption log for records responsive to Items (a), (c), (d), (e), (f) and
(g) of the February 7, 2017, Right-to-Know Law (RTKL)1 request of
UnitedHealthcare of Pennsylvania, Inc.; (2) reconsider the applicability of DHS’s
proffered exemptions after review of the exemption log; and (3) issue a new
determination as to whether the records are protected from disclosure on a priority
basis.
Jurisdiction is RELINQUISHED.
__________________________________
MICHAEL H. WOJCIK, Judge
1
Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.