Wishnefsky v. Pa. Dep't of Corr. , 2016 Pa. Commw. LEXIS 344 ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Bruce L. Wishnefsky, :
Petitioner :
:
v. : No. 2497 C.D. 2015
: Submitted: May 6, 2016
Pennsylvania Department of :
Corrections, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION
BY JUDGE COHN JUBELIRER FILED: July 29, 2016
Bruce L. Wishnefsky (Wishnefsky) petitions for review of the November 4,
2015 Final Determination (Determination) issued by the Pennsylvania Office of
Open Records (OOR). OOR denied Wishnefsky’s appeal of the Department of
Corrections’ (Department) denial of Wishnefsky’s request for invoices regarding
the cost of a medical device. After careful review of the record, we vacate OOR’s
Final Determination and remand for proceedings consistent with this opinion.
Wishnefsky is incarcerated at the State Correctional Institution (SCI) Laurel
Highlands. On August 26, 2015 Wishnefsky submitted three requests for records
to the Department pursuant to the Right-to-Know Law (RTKL).1 Wishnefsky
1
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
placed all three requests in one envelope and addressed it to the Department’s
Open Records Officer. The Department treated the three requests as one and on
August 28, 2015 issued an interim response extending the final response date to
October 2, 2015. Relevant to this matter, Wishnefsky sought the following
(Request):
(1) any record, including, but not limited to, a purchase order or
invoice, that shows the price paid by the Department for the Hernia
Support manufactured and /or distributed by Hermell Products, Inc.
(2) any record, including, but not limited to, a purchase order or
invoice, that shows the price paid by Correct Care Solutions, LLC, for
use under the contract it has with the Department, for the Hernia
Support manufactured and /or distributed by Hermell Products, Inc.
(Certified Record (CR) at Item 1.) On September 30, 2015, the Department denied
the Request on the basis that the Request did not seek public records because it
posed a question seeking an explanation regarding the application of laws or
procedures to a specific set of facts. (Id.)
Wishnefsky appealed to OOR. In his appeal, he stated that two of three
requests he submitted to the Department contained the identical language “any
record, including, but not limited to, a purchase order or invoice, that shows the
price paid” for two different items, the hernia support referenced above and for an
“RCA 19 inch LED TV with remote.” (Id.)2 Wishnefsky noted that the
Department provided records showing the cost of the television but denied the
2
Wishnefsky’s Petition for Reconsideration addressed to OOR provides insight into the
requests for the price of the various items. He states in the attached verification that “[i]f an
inmate negligently damages a health care item such as the hernia support belt at issue here he
could be assessed for the cost of its replacement by the [Department].” (CR at Item 5.)
2
Request on the basis that he posed a question even though he used the identical
language regarding both the hernia support and the television. He asserted that the
Department “should be required to explain why it was able and willing to provide
the requested [record for the television but not for the hernia support when both
requests sought] a purchase order or invoice.” (Id.)
OOR on October 16, 2015 sent an Official Notice of Appeal by e-mail to the
Department’s Open Records Officer and by First Class mail to Wishnefsky. The
Notice provided that any information and legal argument must be submitted not
later than 11:59:59 p.m. seven business days from the date of the Notice and that
items mailed and received after 5 p.m. will be treated as having been received the
next business day. The Notice also advised that the agency is permitted to assert
exemptions not asserted in the agency’s initial denial, citing Levy v. Senate of
Pennsylvania, 65 A.3d 361 (Pa. 2013). (CR at Item 2.)
On the seventh business day after the Notice, October 27, 2015, the
Department submitted a letter with two declarations made under penalty of perjury
in support of its denial of the Request in which it asserted new reasons for its
denial of the Request. The Department asserted that “the requested record does not
exist within the Department’s custody, possession or control.” (Id. at Item 3.) The
first declaration was executed by the Department’s Acting Director of the Bureau
of Health Care Services who attested that “[a]fter reasonable search, no responsive
records exist within the Department’s custody, possession or control.” (Id.) The
second declaration was executed by the Regional Vice President of the current
contractor for health care services for the Department who attested that the
company does not contract with the hernia support manufacturer directly but
instead goes through a third party who obtains the hernia support from the
3
manufacturer such that neither the Department nor its contractor directly pays the
manufacturer. (Id.)
For these reasons, the Department argued that it could not produce a record
that did not exist in its possession and thus properly denied paragraph (1) of the
Request; and that it properly denied paragraph (2) of the Request as it was not
required to obtain a record from its contractor where that record does not directly
relate to the contractor’s performance of providing medical services. No mention
was made of the rationale for denying the Request initially set forth in the
Department’s September 30, 2015 final response. The Department filed its
October 27, 2015 letter and declarations with OOR via e-mail and served
Wishnefsky by mail. (Id.)
On November 4, 2015, Wishnefsky replied to the Department’s October 27,
2015 OOR filing, which he stated he received on November 2, 2015. (CR at Item
5.) In his November 4, 2015 Reply, Wishnefsky requested that OOR take judicial
notice of an OOR Final Determination (Docket No. AP-2011-0171), which
involved a request for an invoice submitted by Somerset Hospital to then
Department contractor Prison Health Services for in-patient treatment for
Wishnefsky that occurred in 2007. Based on the facts of that matter, Wishnefsky
argued that it was reasonable to conclude that, even if the records he seeks in the
instant matter are not in the possession of declarant, the Department’s Acting
Director of the Bureau of Health Care Services, it was reasonable to infer based on
the earlier matter that the invoice for the hernia support Wishnefsky seeks here was
in the possession, custody or control of another administrator at SCI-Laurel
Highlands. (CR at Item 5.)
4
However, also on November 4, 2015, the same day Wishnefsky sent his
Reply to the new assertions of the Department, OOR issued its Final Determination
denying Wishnefsky’s appeal. As to the Department’s claim that it did not possess
records responsive to the Request, OOR relied upon the declaration executed by
the Department’s Acting Director of the Bureau of Health Care Services attesting
that a search was conducted and that the Department did not possess any
responsive records. OOR noted that under the RTKL, a statement made under the
penalty of perjury may serve as sufficient evidentiary support for the nonexistence
of records, citing Sherry v. Radnor Township School District, 20 A.3d 515, 520-21
(Pa. Cmwlth. 2011). (Final Determination at 4.) OOR noted further that in the
absence of any competent evidence that the Department acted in bad faith or that
the records exist, “the averments in [the declaration] should be accepted as true.”
(Id., citing McGowan v. Dep’t of Envtl. Prot., 103 A.3d 374, 382-83 (Pa Cmwlth.
2014).) OOR concluded that based upon the evidence provided, the Department
met its burden of proving that it does not possess the requested records. (Final
Determination at 4.)
As to the Department’s claim that it was not required to obtain a record from
its contractor where that record does not directly relate to the contractor’s
performance of providing medical services, OOR noted that certain records in the
possession of a third-party government contractor are subject to disclosure under
RTKL Section 506(d)(1), 65 P.S. § 67.506(d)(1),3 citing Allegheny County
3
(d) Agency possession.--
(1) A public record that is not in the possession of an agency but is in the
possession of a party with whom the agency has contracted to perform a
governmental function on behalf of the agency, and which directly relates to the
(Continued…)
5
Department of Administrative Services v. A Second Chance, Inc., 13 A.3d 1025,
1039 (Pa. Cmwlth. 2011) (holding that records “in the possession of a party with
whom an agency has contracted to perform a governmental function on behalf of
the agency” are presumptively public records subject to public access, “so long as
the record (a) directly relates to the governmental function and (b) is not exempt
under the RTKL.”). (Final Determination at 4-5.) OOR then examined our
decision in Buehl v. Office of Open Records, 6 A.3d 27, 31 (Pa. Cmwlth. 2010),
another decision involving the Department in which we held that records in a
private, third party’s possession regarding the costs it paid for goods it would re-
sell at the commissary did not directly relate to a governmental function. In
OOR’s view, Wishnefsky here sought records similar to those in Buehl. OOR thus
held that to the extent that a third-party contractor, whether it be the current
contractor for health care services for the Department or a subcontractor, possesses
the requested records, those records do not directly relate to the governmental
function of providing medical care to inmates, and thus the records are not subject
to public access under Section 506(d)(1) of the RTKL. (Final Determination at 5.)
After receiving the OOR’s Final Determination, Wishnefsky petitioned OOR
for reconsideration on November 16, 2015. (CR at Item 5.) He raised three
arguments in his Petition for Reconsideration: (1) the Pennsylvania Supreme Court
reversed this Court’s decision in Dental Benefit Providers, Inc. v. Eiseman, 86
A.3d 932 (Pa. Cmwlth. 2014), aff’d 124 A.3d 1214 (Pa. 2015)4 upon which OOR
governmental function and is not exempt under this act, shall be considered a
public record of the agency for purposes of this act.
65 P.S. § 67.506(d)(1).
4
Cited by Wishnefsky in his Petition as “Commonwealth v. Eiseman.”
6
relied in its November 4, 2014 Final Determination, and that the Supreme Court
held that documents required to be submitted to an agency reflecting the rates its
medical care contractors pay their subcontractors are financial records under the
RTKL, and that the subcontracts containing those rates deal with the agency’s
disbursements of public funds to provide access to healthcare to the agency’s
population as well as to meet its own obligations under federal law;5 (2) the
Department’s change in the basis for denying the Request from the original
September 30, 2015 denial to the October 27, 2015 OOR submission denied him
the opportunity to be heard in violation of the due process clause of the 14th
Amendment because he did not receive that submission until November 2, 2015;
and, (3) he had provided to OOR the additional legal argument based on the
previous OOR Final Determination concerning the invoice for his 2007 treatment
at Somerset Hospital. Accompanying the Petition for Reconsideration were a copy
of Wishnefsky’s November 4, 2015 Reply, a verification dated November 12, 2015
in which Wishnefsky among other things stated that he was advised by an
employee of the Department’s current contractor for health care services that the
5
Wishnefsky’s Petition for Reconsideration cites the Supreme Court’s slip opinion as
detailed in a weekly legal publication. From our review of that decision as reported in the
Atlantic Reporter, we conclude that he references the following from the opinion:
we do not find it useful to consider the downstream point at which public funding
transforms into private monies. Rather, our focus remains upon our conclusion
that records which were required to be submitted to and approved by [the
Department of Public Welfare], and which reflect the central means of
implementing a core departmental function, are records “dealing with” [the
Department of Public Welfare’s] disbursement of public monies and its
responsibility to afford access to healthcare services in furtherance of the public
interest.
Dep’t of Pub. Welfare v. Eiseman, 125 A.3d 19, 33 (Pa. 2015).
7
replacement cost for the hernia support is $24.00, a copy of a Department “Health
Care Item(s) Receipt” for the hernia support apparently issued to Wishnefsky, and
information from the hernia support manufacturer’s website. (CR at Item 5.)
OOR denied Wishnefsky’s Petition for Reconsideration by a two-sentence
letter dated November 20, 2015. The denial did not address any of the issues
raised in Wishnefsky’s November 4, 2015 Reply or in his Petition for
Reconsideration. (CR at Item 6.) This appeal followed.6
Before this Court,7 Wishnefsky raises five issues, which we present with
minimal editing: (1) did OOR err when it denied his request for any record that
shows the price paid by the Department for the hernia support belt on the basis that
he does not seek a public record because it poses a question that seeks an
explanation regarding the application of laws or procedures to a specific set of
facts, when the Department made no effort to justify this position in the appeal to
the OOR; (2) did OOR err when the Department changed its position without any
explanation to claim that it does not possess the records regarding the hernia
support, and the OOR took this at face value, even though before the Final
Determination was issued, the Supreme Court wrote in Department of Public
Welfare v. Eiseman, 125 A.3d 19, 29 (Pa. 2015), that this type of response is “not
well taken” when the agency did not claim non-possession in its initial response;
6
Wishnefsky seeks review of OOR’s November 4, 2015 Final Determination and did not
appeal from OOR’s denial of his Petition for Reconsideration. OOR certified as part of the
record all of the filings received from the parties including those which it received after the
November 4, 2015 Final Determination. As we apply the broadest scope and standard of review
under the RTKL, see Bowling v. Office of Open Records, 75 A.3d 453, 473-74 (Pa. 2013), we
may consider all of the materials certified to us.
7
Our standard of review of an OOR Final Determination is de novo and our scope of
review is plenary. Hunsicker v. Pa. State Police, 93 A.3d 911, 913 n.7 (Pa. Cmwlth. 2014).
8
(3) did OOR err in making its Final Determination without merits input from
Wishnefsky in violation of procedural due process; (4) did OOR err in failing to
take judicial notice of its records in another OOR proceeding between the same
parties; and, (5) did OOR err when it failed to consider [the Supreme Court’s
Eiseman decision], instead of the Commonwealth Court decision in the same case
that had been reversed.8 However, because of our disposition of this matter, we
will address only Wishnefsky’s due process contention.
Wishnefsky asserts that OOR erred in making its Final Determination
without merits input from him in violation of procedural due process. Essentially,
Wishnefsky argues that the Department’s October 27, 2015 filing asserted new and
different justifications for denying his Request, and the OOR affirmed that denial
without allowing him to reply to, or address, those new justifications. This he
asserts was a denial of due process.
We addressed the concept of due process and the RTKL extensively in State
Employees’ Retirement System v. Pennsylvanians for Union Reform, 113 A.3d 9
(Pa. Cmwlth. 2015) (PFUR). Therein Pennsylvanians for Union Reform (PFUR)
argued that its due process rights were violated because OOR did not afford PFUR
an opportunity to challenge the submissions of the third parties. We stated:
As our Supreme Court acknowledged in Bowling, the expedited
procedures established by the General Assembly in the RTKL for
review of appeals before an OOR appeals officer are less formal and
8
The Department in its responsive brief argues that OOR correctly denied Wishnefsky’s
appeal because the Department does not possess the record requested, and the price paid for a
hernia support does not directly relate to the performance of the contract between the
Department’s current contractor for health care services and the Department. It does not address
Wishnefsky’s arguments except for his contention that OOR relied on Eiseman after it was
reversed by the Supreme Court.
9
less robust than those that typically govern the administrative agency
adjudicatory process. See Bowling [v. Office of Open Records], 75
A.3d [453,] 473 [(Pa. 2013).] “[T]he essential elements of due
process in an administrative proceeding are notice and an opportunity
to be heard.” McFadden v. Unemployment Comp. Bd. of Review,
806 A.2d 955, 958 (Pa. Cmwlth. 2002). There can be no doubt that
the RTKL, even under its expedited framework, provides notice
and an opportunity to be heard to a requester.
PFUR, 113 A.3d at 20 (emphasis added).
Here, Wishnefsky was not afforded an opportunity to be heard and to answer
the Department’s submission to OOR, which asserted new and different reasons to
support its denial of his Request.9 This case is therefore different than PFUR. The
Department’s initial September 30, 2015 denial letter asserted that Wishnefsky’s
Request posed a question seeking an explanation regarding the application of laws
or procedures to a specific set of facts and thus did not seek a record. Wishnefsky
9
Wishnefsky is correct that the Department offered a different basis for denying the
Request before OOR on appeal than it did in the initial denial. However, as stated in OOR’s
Official Notice of Appeal, the Department is permitted to assert exemptions not asserted in the
Department’s initial denial in accordance with our Supreme Court’s decision in Levy.
Accordingly, the Department did not waive the arguments made to OOR when it did not assert
them in the initial denial letter to Wishnefsky.
Wishnefsky cites a snippet of the Supreme Court’s subsequent decision in Department of
Public Welfare v. Eiseman, 125 A.3d at 29, in which the Court states that an assertion of non-
possession is “not well taken” when the agency did not claim non-possession in its initial
response. An agency should determine whether it possesses the record without unreasonable
delay, and it should be a rare occasion when an agency does not assert lack of possession in its
initial denial where appropriate, particularly where the additional 30-day period to respond to
RTKL requests is invoked. In Eiseman, the Department of Public Welfare (now the Department
of Human Services) did not assert non-possession in its initial denial, at any time during an
extensive hearing before OOR, or during appellate review of that record by this Court, but
asserted non-possession of the record for the first time on discretionary review to the Supreme
Court. Id. In contrast, here, although the Department did not assert non-possession in its initial
denial, it did in its appeal to the OOR. Thus, the Court’s statement in Eiseman does not change
the result here in that regard.
10
in his appeal to OOR squarely addressed the dichotomy of the Department
providing the record for the television but denying the Request for the hernia
support notwithstanding that the two requests contained identical language. In its
response filed on the last day permitted under OOR’s Official Notice of Appeal,
the Department asserted a new rationale for denying the Request and served OOR
by e-mail and Wishnefsky by U.S. mail. Upon receipt of the Department’s newly
asserted rationale for denying the Request, Wishnefsky quickly attempted to
respond and to bring the prior OOR decision involving what he claimed to be a
similar circumstance to OOR’s attention, again squarely questioning the new basis
of the Department’s denial.10 However, OOR issued its Final Determination on
10
In Wishnefsky v. Department of Corrections, Docket No. 2011-0171, Final
Determination issued March 15, 2011, OOR denied Wishnefsky’s appeal from the Department’s
denial of his four requests for invoices “for [his] inpatient treatment.” (March 15, 2011 Final
Determination at 1-2.) Before OOR, the Department asserted the non-existence of records
responsive to three of the requests. As to the fourth, the Department submitted the Attestation of
the Corrections Health Care Administrator at SCI-Laurel Highlands who averred that there were
five pages of responsive invoices that contained patient name, date of birth, date of admission
and address; medical account information; description of medical services/tests provided and
units of service; cost of itemized service; total cost for provision of medical care; and identity of
medical providers, including physician names. The Administrator further attested that the
invoices were created by Somerset Hospital and received by the Department’s contractor, Prison
Health Services, Inc., and related to the health or condition of an identified individual. (Id. at 2.)
Based on the Attestation the Department contended that the identification of the
individual with health information on invoices was sufficient to protect them from disclosure
under RTKL Section 708(b)(5), 65 P.S. § 67.708(b)(5), and that the invoices could not be
redacted in a manner that would preclude identification of treatment with an individual. (Id.)
OOR concluded based on the language of Wishnefsky’s request and the Attestation that “even if
[the Department] redacts all but the cost and supplies that record to [Wishnefsky], it is releasing
a record of an individual’s medical care exempt under Section 708(b)(5),” and that “because the
[r]equest is inextricably tied to [Wishnefsky’s] own medical treatment and name, the OOR
agrees with [the Department] that the invoices cannot be redacted in a manner that would
preclude identification of treatment with an individual.” (Id. at 5.)
Wishnefsky recognizes the distinction between the declarant in this matter, the
Department’s Acting Director of the Bureau of Health Care Services, and the attester in the
(Continued…)
11
November 4, 2015 the same day that Wishnefsky filed his Reply to the
Department’s new rationale. Upon receipt of the OOR’s Final Determination,
Wishnefsky quickly filed a Petition for Reconsideration to which he attached his
November 4, 2015 Reply, and in which he raised the additional issues outlined
above, which OOR perfunctorily denied.
Section 1101 of the RTKL provides that a requestor appealing from an
agency determination “shall address any grounds stated by the agency for delaying
or denying the request.” 65 P.S. § 67.1101(a)(1). In Levy, the Supreme Court
examined this section in the context of deciding whether an agency waives reasons
for non-disclosure that were not stated in the agency’s initial denial of a RTKL
request. Levy, 65 A.3d at 380-83. The Senate, arguing against finding waiver,
maintained that the requester would not be prejudiced by the addition of new
reasons, because the appeals officer can set a schedule allowing for the requester to
respond within the permitted timeframe. In holding that there was no waiver, the
Supreme Court balanced the need for liberal construction of the RTKL to
effectuate the “overriding legislative intent of transparency of government and
speedy resolution of requests,” with the legislative intent to shield numerous
categories to protect “the Commonwealth’s security interests and individuals’
privacy rights.” Id. at 381-82. The Court nonetheless recognized that “the
earlier matter, the Corrections Health Care Administrator at SCI-Laurel Highlands who was
identified as the custodian for the medical invoices/treatment records, (id. at 2), and posits that as
in that earlier matter, the record he seeks may be found in the possession of that latter individual.
Although OOR accepted the Declaration in this matter as sufficient evidentiary support for the
nonexistence of records, citing Sherry, 20 A.3d at 520-21, and noted further that in the absence
of any competent evidence that the Department acted in bad faith or that the records exist, “the
averments in [the declaration] should be accepted as true,” citing McGowan, 103 A.3d at 382-83,
Wishnefsky’s identification of the earlier matter and the circumstances presented therein may
provide evidence to the contrary that OOR should have considered.
12
efficiency of the RTKL process arguably results in informality bordering on lack
of due process regarding the protections provided by the RTKL.” Id. at 382.
This case illustrates how the addition of a new reason for denying a request
after the appeal, can result in prejudice to the requester, where the OOR does not
consider the requester’s response. But for OOR’s issuing the Final Determination
here at issue on November 4, 2015, Wishnefsky’s Reply to the Department’s
newly announced reason for the denial of Wishnefsky’s Request could have been
considered by OOR because it was filed well within the thirty day period within
which OOR is required to issue its decision.11 When Wishnefsky’s Reply was not
considered in OOR’s Final Determination, he timely filed the Petition for
Reconsideration. Thus, the combination of the Department asserting a new and
different reason for denying the Request, exacerbated by the disparity in each
party’s ability to receive and file documents in the proceeding, and the OOR not
considering Wishnefsky’s response, either when filed or on reconsideration,
resulted in Wishnefsky not receiving an opportunity to be heard by OOR 12, and not
being able to address “any grounds stated by the agency for . . . denying the
request.” 65 P.S. § 67.1101(a)(1) (emphasis added).
In Bowling, the Supreme Court affirmed that this Court is “the ultimate
finder[] of fact and that [we] are to conduct full de novo reviews of appeals from
decisions made by RTKL appeals officers. . . .” Bowling, 75 A.3d at 474. Our
standard of review thus is de novo and our scope of review is plenary. Id.;
11
Section 1101(b)(1) of the RTKL, 65 P.S. § 67.1101(b)(1), provides that OOR must
make a final determination within thirty days of receipt of an appeal unless the requester agrees
to a different timeframe. OOR would therefore have had until November 16, 2015 to issue its
final determination in Wishnefsky’s appeal.
12
See PFUR, 113 A.3d at 20 (“There can be no doubt that the RTKL, even under its
expedited framework, provides notice and an opportunity to be heard to a requester.”).
13
Hunsicker v. Pa. State Police, 93 A.3d 911, 913 n.7 (Pa. Cmwlth. 2014). Although
we could conduct our own review of the materials Wishnefsky submitted to OOR,
it is more appropriate for OOR to perform this initial fact-finding function. We
therefore will vacate the November 4, 2015 Final Determination and remand this
matter to OOR with instructions to address the issues raised by Wishnefsky in
response to the Department’s changed rationale for its denial of Wishnefsky’s
Request.13
________________________________
RENÉE COHN JUBELIRER, Judge
13
We note that the Petition for Reconsideration contains a reference to the Supreme
Court’s decision in Department of Public Welfare v. Eiseman, 125 A.3d 19 (Pa. 2015), for the
proposition that documents required to be submitted to an agency reflecting the rates its medical
care contractors pay their subcontractors are financial records under the RTKL, and that the
subcontracts containing those rates deal with the agency’s disbursements of public funds to
provide access to healthcare to the agency’s population as well as to meet its own obligations
under federal law. Given that the Supreme Court’s decision was issued shortly before OOR’s
Final Determination in this matter and is not cited by OOR, and that it addresses the issue of
whether an agency was required to obtain records from its third-party contractor, it was error not
to address this decision on Reconsideration. See also, SWB Yankees LLC v. Wintermantel, 45
A.3d 1029, 1044 n.19 (Pa. 2012) (“in the context of a government agency’s wholesale delegation
of its own core governmental function to another entity, we find that a reasonably broad
perspective concerning what comprises transactions and activities of the agency should be
applied.”).
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Bruce L. Wishnefsky, :
Petitioner :
:
v. : No. 2497 C.D. 2015
:
Pennsylvania Department of :
Corrections, :
Respondent :
ORDER
NOW, this 29th day of July, 2016, the November 4, 2015 Final
Determination of the Pennsylvania Office of Open Records is VACATED, and this
matter is REMANDED for proceedings consistent with this Opinion.
Jurisdiction relinquished.
________________________________
RENÉE COHN JUBELIRER, Judge