Real Alternatives v. DHS & Equity Forward (OOR)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Real Alternatives, : CASES CONSOLIDATED
Petitioner :
:
v. :
:
Department of Human Services :
and Equity Forward (Office of :
Open Records), : No. 986 C.D. 2020
Respondents :
:
:
Equity Forward and Mary Alice Carter, :
Petitioners :
:
v. :
:
Pennsylvania Department of Human :
Services (Office of Open Records), : No. 1002 C.D. 2020
Respondent : Argued: March 7, 2022
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION
BY JUDGE FIZZANO CANNON FILED: July 19, 2022
Before us are the consolidated appeals of Equity Forward and its
Executive Director, Mary Alice Carter (jointly, Requester), and Real Alternatives
from the September 11, 2020 final determination issued by the Pennsylvania Office
of Open Records (OOR) following remand by this Court. Upon review, we affirm.
I. Background
In 2012, Real Alternatives, a private non-profit corporation, entered
into a grant agreement (Grant Agreement) with the Pennsylvania Department of
Human Services (DHS),1 by which Real Alternatives agreed to assist in
administering Pennsylvania’s Alternatives to Abortion Program (Program) by
“arrang[ing] for the provision of direct alternatives to abortion services, statewide,
to clients requiring alternatives to abortion services.” Grant Agreement, Rider 2,
Work Statement (Work Statement) at 1, Reproduced Record (R.R.) at 88a; see also
Grant Agreement, Rider 2, Work Plan (Work Plan) at 1, R.R. at 93a; Grant
Agreement at 1, R.R. at 81a. The Grant Agreement sets forth the following client
services plan:
Real Alternatives, through its network of pro-life [s]ervice
[p]roviders, reaches out to each woman, no matter [] her
background or circumstances, and without fee. . . .
Compassionate trained counselors assess each woman’s
situation and assist her in developing a positive approach
to her pregnancy. Support during the parenting or
adoption decision involves counseling, education,
material assistance, and referrals. . . .
....
Depending on the Program funding level, Real
Alternatives will advertise statewide using television,
radio, and other media that reach the greatest number of
potentially pregnant women as effectively and efficiently
as possible, and to the extent fiscally possible. . . .
....
The . . . Program primarily provides core services
consisting of information and counseling that promote[]
childbirth instead of abortion and assist[s] pregnant
1
At the time the Grant Agreement was executed, DHS still functioned as the Department
of Public Welfare.
2
women in their decision regarding adoption or parenting.
The [P]rogram also provides support services including
client self-administered pregnancy test kits, baby food,
maternity and baby clothing and baby furniture, as well as
information, education, and referrals for other services for
the needs of the women and newborn. The information
and education provided include[] topics regarding prenatal
care, childbirth, adoption, parenting, and the use of
abstinence to avoid unplanned pregnancies and sexually
transmitted diseases.
Work Plan at 3-4, R.R. at 95a-96a. “Service [p]roviders are reimbursed for the core
and support services rendered to women pursuant to a fee-for-service model.” Id. at
3, R.R. at 95a. A potential service provider interested in providing services under
the Program must operate as a non-profit organization that does not charge fees to
eligible clients; have been in operation a minimum of one year providing core
alternatives to abortion services, such as information and counseling promoting
childbirth rather than abortion and assisting women in parenting or adoption
decisions; and provide education promoting abstinence as the “best and only
method” for avoiding unplanned pregnancies and sexually transmitted infections.
Id. at 6, R.R. at 98a.
In September 2017, Requester submitted to DHS a request (Request)
under the Right-to-Know Law (RTKL)2 seeking the following records pertaining to
the Grant Agreement:
1: All “Program[3] Development and Advancement
Agreements” [(PDAAs)] signed between Real Alternatives,
2
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
3
We note that the Request does not define or otherwise clarify to what “Program” refers.
See Request at 1-2, R.R. at 28a-29a. Real Alternatives and service providers entered into the
Program Development and Advancement and Agreements (PDAAs) to “develop and advance
other life affirming programs both locally and nationally.” See Affidavit of Kevin I. Bagatta (First
3
or its predecessor groups[,] Morning Star Pregnancy
Services and Morning Star Project [Women in Need
(WIN)] Advisory Council and its Pennsylvania “service
providers.”
2: All invoices, receipts and expenditure
documentation submitted by Pennsylvania “service
providers” to Real Alternatives, or its predecessor groups
Morning Star Pregnancy Services and Morning Star
Project WIN Advisory Council.
Request at 1, R.R. at 28a.4 In November 2017, DHS issued a response denying the
Request. DHS Response at 1-2, R.R. at 37a-38a. DHS stated it did not possess
responsive records and communicated Real Alternatives’ assertion that the requested
records in Real Alternatives’ possession were not accessible under RTKL Section
506(d)(1), as they did not directly relate to any governmental function performed by
Real Alternatives under a contract with any Commonwealth Agency. Id. (citing 65
P.S. § 67.506(d)(1)).
Requester appealed DHS’s denial to the OOR. Requester’s Appeal at
1-2, R.R. at 44a-45a. Real Alternatives requested leave to participate and submit
information in the appeal pursuant to Section 1101(c) of the RTKL, which the
OOR granted. Real Alternatives’ Letter, 12/14/17 at 1-2, R.R. at 52a (citing 65 P.S.
§ 67.1101(c)); OOR Final Determination at 2, R.R. at 179a. DHS and Real
Alternatives submitted position statements to the OOR. Real Alternatives’ Position
Statement at 1-7, R.R. at 66a-72a; DHS’s Position Statement at 1-6, R.R. at 161a-
66a. DHS also submitted the sworn attestations of Andrea Bankes, Administrative
Bagatta Affidavit) at 4, ¶ 21, R.R. at 77a (emphasis added). Thus, “Program Development and
Advancement Agreement” presumably refers to a program other than Pennsylvania’s Alternatives
to Abortion Services Program.
4
Requester also sought additional information not at issue in the present appeal.
References to the Request herein refer only to items 1 and 2.
4
Officer for DHS’s Office of Administration (Bankes), and Karen Herrling, Director
of DHS’s Office of Social Programs (Herrling). Bankes Attestation at 1-2, R.R. at
168a-69a; Herrling Attestation at 1-3, R.R. at 70a-72a. Real Alternatives submitted
the affidavit (First Bagatta Affidavit) of its president, Kevin I. Bagatta (Bagatta).
See First Bagatta Affidavit at 1-5, R.R. at 74a-78a.
In January 2018, the OOR issued a final determination affirming DHS’s
denial of the Request. The OOR accepted the First Bagatta Affidavit as sufficient
evidence to establish that the records sought did not directly relate to Real
Alternatives’ performance of a governmental function pursuant to the Grant
Agreement with DHS. OOR Final Determination, 1/22/18 at 9-11, R.R. at 186a-
88a. Requester appealed the OOR’s determination to this Court.
We vacated the OOR’s January 2018 final determination and remanded
the matter to the OOR. We concluded that the First Bagatta Affidavit was
insufficient to support the determination, because the affidavit merely stated the
requested PDAAs were “completely unrelated to services provided by Real
Alternatives under the Grant Agreement,” without identifying services provided
under the PDAAs that are not part of the program for which the DHS grant was
provided. Equity Forward v. Pa. Dep’t of Hum. Servs. (Pa. Cmwlth., No. 225 C.D.
2018, filed May 17, 2019),5 slip op. at 17 (quoting First Bagatta Affidavit at 4, ¶¶ 21
& 24-27, R.R. at 77a). Thus, we held that “the OOR had no basis to assess whether
the conclusory statement that the PDAAs were unrelated to the governmental
function was factually accurate.” Id. Further, we noted that the First Bagatta
Affidavit was insufficient to support a conclusion that the PDAAs were not directly
5
We cite this unreported opinion as persuasive authority pursuant to this Court’s Internal
Operating Procedures. 210 Pa. Code § 69.414(a).
5
related to the governmental function identified in the Grant Agreement, because the
imprecise and ambiguous references to “vendor service providers,” “independent
service providers,” and “service providers” throughout the affidavit did not explain
whether the service provider referred to in a given item of the affidavit was one that
provided service under the Grant Agreement, the PDAAs, or both. Id. (citing First
Bagatta Affidavit at 3-4, ¶¶ 16-18 & 21-23, R.R. at 76a-77a). We held, therefore,
that the absence of sworn statements or testimony as to the scope, nature, and extent
of Real Alternatives’ and the service providers’ contractual obligations under the
PDAAs hindered meaningful appellate review. Id. at 17-18.
Regarding item 2 of the Request, we concluded that the OOR erred in
confining its analysis to whether DHS had the Service Provider Monthly Invoices 6
in its possession and whether the Grant Agreement required Real Alternatives to
submit these records to DHS. Equity Forward, slip op. at 19. We reasoned that “it
would undermine the clear aim of RTKL Section 506(d)(1)—which recasts certain
third-party records bearing the requisite connection to government as public records
‘of the [government] agency’ to require that [] the materials actually be ‘of such
agency’ in the first instance.” Id. at 19-20 (quoting SWB Yankees LLC v.
Wintermantel, 45 A.3d 1029, 1044 (Pa. 2012)). Moreover, we observed that
requiring the requested documents to be deliverable under the contract in question
would also mean that private entities performing governmental functions could
avoid disclosure of information relative to the performance of that governmental
6
Bagatta attested that “Real Alternatives generates a monthly invoice for each service
provider for services rendered that are reimbursable under the Grant Agreement (the Service
Provider Monthly Invoice),” but that it “is not given to or received by [DHS],” as it “is not among
the negotiated ‘deliverables’ required between Real Alternatives and [DHS] under the [2012]
Grant Agreement.” Equity Forward, slip op. at 6 (quoting First Bagatta Affidavit at 4-5, ¶¶ 29 &
32-33, Supplemental Reproduced Record at 74b-75b).
6
function simply by negotiating a contract that does not require disclosure, thus
subverting the requirements of the RTKL. Id. at 20. We concluded, therefore, that
the OOR erred when it failed to analyze whether there were documents responsive
to item 2 which directly relate to the performance of the governmental function by
Real Alternatives pursuant to the Grant Agreement. Id.Accordingly, we directed the OOR on remand to evaluate whether the
requested records directly related to Real Alternatives’ performance of a
governmental function under the Grant Agreement. Equity Forward, slip op. at 18
& 21. We further stated that if the OOR on remand deemed the Service Provider
Monthly Invoices public records under RTKL Section 506(d)(1), 65 P.S. §
67.506(d)(1), it would then need to determine whether these documents constituted
“invoices, receipts and expenditure documentation submitted by Pennsylvania
‘service providers’ to Real Alternatives,” as described in the Request. Id. at 21.
On remand to the OOR, Real Alternatives supplemented the record with
a copy of a PDAA for in camera review7 and an additional affidavit from Bagatta
(Second Bagatta Affidavit). OOR Final Determination, 6/26/20 at 3, R.R. at 245a;
see also Second Bagatta Affidavit at 1, ¶ 2, R.R. at 235a. Bagatta attested, in relevant
part:
7. Real Alternatives administered delivery of its services
under the [] Grant Agreement through a network of
twenty-eight[] independent[] vendor service providers [8]
7
Requester sought in camera review of the PDAAs, and the OOR agreed to this request.
See OOR E-mail, 11/5/19, R.R. at 241a.
8
Bagatta addressed the concern expressed by this Court in its May 17, 2019 memorandum
opinion regarding the imprecise and ambiguous references to “vendor service providers,”
“independent service providers” and “service providers” in the First Bagatta Affidavit, noting that
the network of 28 independent “vendor service providers” with which Real Alternatives contracted
7
. . . who operated ninety facilities throughout the
Commonwealth.
8. For the period covered by the Requests, Real
Alternatives had an agreement directly with each [service
p]rovider to provide services under the Program in a
manner consistent with the terms of the [] Grant
Agreement.
Second Bagatta Affidavit at 1, ¶¶ 7-8, R.R. at 235a (quoting Work Statement at 1,
R.R. at 88a). Bagatta attested as follows regarding the PDAAs sought pursuant to
item 1 of the Request:
9. For the period covered by the Request[], Real
Alternatives had another, separate agreement with each
[service p]rovider.
10. Under this separate agreement, called the Program
Development and Advancement Agreement (PDAA),
each [service p]rovider agreed to pay Real Alternatives,
using money earned and owned by the [service
p]rovider—i.e., private money—to conduct activities
completely outside of the [] Grant Agreement.
11. In general, these activities included development and
advancement by Real Alternatives of pregnancy and
support programs, both locally and nationally.
12. In essence, the PDAAs generated funds that Real
Alternatives used to fund activities outside the scope of the
[] Grant Agreement, i.e., to fund activities and costs that
would be rejected if they were charged to [DHS] under the
[] Grant Agreement.
13. For instance, Real Alternatives used funds generated
by the PDAAs in the following ways, among others:
shall be referred to throughout the Second Bagatta Affidavit as “the Providers, collectively; or[]
the Provider, individually[.]” Second Bagatta Affidavit at 1, ¶ 7, R.R. at 235a. For the sake of
consistency, “Providers,” as defined in the Second Bagatta Affidavit, shall hereinafter be referred
to as “service providers.”
8
a. to make presentations about creating alternatives
to abortion programs in other states;
b. to cover costs and staff time for new follow-on
contract proposals and negotiations with [DHS]
which are not chargeable costs subject to
reimbursement under the [] Grant Agreement;
c. to establish cash reserves used by Real
Alternatives to continue its operations, locally and
nationally, while waiting for delayed government
payments owed and due to Real Alternatives;
d. to cover costs incurred by Real Alternatives in
advancing and protecting its life-affirming
programming, which were also not chargeable costs
under the [] Grant Agreement; and
e. the development and publication of sexual health
education websites directed to teens and parents of
teens.
14. Overall, the PDAAs essentially provided funding to
Real Alternatives so that it could cover any cost for any
activity it pursued in furtherance of advancing alternatives
to abortion services, []which costs were outside the scope
of the [] Grant Agreement.
15. To be clear, the PDAAs were voluntary agreements
between Real Alternatives and each [service p]rovider and
they were agreements that were totally unrelated to the
governmental function that Real Alternatives performed
under the [] Grant Agreement.
16. [DHS] was not a party to the PDAAs, did not approve
or disapprove the PDAAs, and was, for all purposes, a
stranger to the PDAAs.
17. The PDAAs existed so that Real Alternatives could
remain scrupulous and in strict compliance with the []
Grant Agreement, but still cover costs it incurred in pursuit
of the private interest of championing the shared belief of
Real Alternatives and the [service p]roviders that
alternatives to abortion programs are good and valuable
services to women, both in Pennsylvania and nationwide.
9
Second Bagatta Affidavit at 2-3, ¶¶ 9-17, R.R. at 236a-37a. Bagatta further attested
regarding the Service Provider Monthly Invoices identified as responsive to item 2
of the Request:
18. Under the [] Grant Agreement, specially-trained
persons at the [service p]roviders entered information into
a Real Alternatives trade secret, copyrighted, proprietary
software system concerning services provided to clients
related to the Program.
19. With that proprietary software, Real Alternatives
generated a monthly invoice for each service provider for
services rendered that were reimbursable under the Grant
Agreement (the Service Provider Monthly Invoice).
20. The Service Provider Monthly Invoice contains
confidential identification numbers, which are used to
identify the client receiving services (i.e., the woman
receiving counseling) as well as the location at which she
received services.
21. Other information on the Service Provider Monthly
Invoice includes the amount of counseling time provided
per client, classes attended, services provided, and the total
reimbursable amount due the service providers.
22. The Service Provider Monthly Invoice was not given
to or received by [DHS] under the [] Grant Agreement.
23. The totals from every Service Provider Monthly
Invoice were added together each month, and then
submitted by Real Alternatives to [DHS], along with a
host of other reimbursable charges, on a report known as
the “Monthly Expenditure Report” for approval. The
aggregate Service Provider Monthly Invoice total is
included in the “Counseling Reimbursement” and
“Pregnancy Test Kits” cost category lines of the “Monthly
Expenditure Report.”
24. Under the [] Grant Agreement, Real Alternatives pays
service providers with funds received quarterly from
[DHS].
10
25. In effect, the Service Provider Monthly Invoices were
but a single cost of Real Alternatives[’] cost category,
among a fleet of many other costs included in a fleet of
costs categories (including Salary and Wages, Payroll
Taxes, Professional Development and Training,
Workers[’] Compensation Insurance, 403B Contribution,
Employee Group Insurance, Consulting, Postage/
Shipping, Auditing, Travel/Lodging, Rent, Telephone
Service, General Business Liability Insurance, Directors
and Owners Liability Insurance, Office Expense,
Computer Upgrades, Equipment Services Contracts,
Information and Training Materials, Services Advertising,
Services Travel, Services Database Consulting &
Development, Meeting and Seminars, Toll-free Referral
System). These cost categories were submitted by Real
Alternatives to [DHS] for approval to ensure they were
within the contract-approved budget of cost categories.
Second Bagatta Affidavit at 3, ¶¶ 18-25, R.R. at 237a.
Real Alternatives also submitted a position statement, contending that
the Second Bagatta Affidavit showed the PDAAs were entirely unrelated to its
performance of a governmental function pursuant to the [] Grant Agreement. See
Remand Position Statement, 10/25/19 at 1-2, R.R. at 230a-31a. Real Alternatives
also asserted that disclosure of the PDAAs would infringe upon due process, privacy
and property protection rights guaranteed by Article I, Section 1 of the Pennsylvania
Constitution. Remand Position Statement, 10/25/19 at 2, R.R. at 231a (citing Pa.
Const. art. I, §1). Further, Real Alternatives argued that the Service Provider
Monthly Invoices responsive to item 2 of the Request constituted “mere cost
information” and, thus, were not accessible as records directly relating to its
performance of a governmental function pursuant to RTKL Section 506(d)(1). Id.
at 3, R.R. at 232a (quoting UnitedHealthcare of Pa., Inc. v. Baron, 171 A.3d 943,
964 (Pa. Cmwlth. 2017)).
11
On June 26, 2020, the OOR issued a final determination granting in part
and denying in part Requester’s appeal on remand. OOR Final Determination,
6/26/20 at 8, R.R. at 250a. The OOR concluded that the PDAAs sought pursuant to
item 1 of the Request were not accessible because they did not directly relate to Real
Alternatives’ performance of a governmental function pursuant to the [] Grant
Agreement. Id. at 4, R.R. at 246a. The OOR determined Bagatta’s affidavit
demonstrated that the PDAAs constitute “separate agreements between [Real
Alternatives] and the [s]ervice [p]roviders in which [Real Alternatives] is obligated
to provide services to the [s]ervice [p]roviders for which the [s]ervice [p]roviders
compensate [Real Alternatives].” Id. at 3-4, R.R. at 245a-46a (emphasis in original).
Further, the OOR concluded “[t]he PDAAs do not evidence any contract in which
the [s]ervice [p]roviders are providing any services [to Real Alternatives] in support
of [Real Alternatives’] performance of its contract with [DHS].” Id. at 4, R.R. at
246a. The OOR asserted that regardless of “any similarity [between] the services
provided under [the PDAAs and the Grant Agreement],” Real Alternatives is
“performing a service for a non-governmental entity, as opposed to the service
providers providing services to [Real Alternatives] in furtherance of [Real
Alternatives’] agreement with [DHS].” Id. at 4 n.3, R.R. at 246a. Thus, the OOR
reasoned that “Section 506(d)(1) of the RTKL cannot be read for the proposition that
a contract between private entities is subject to public disclosure because the services
provided are similar to services provided to a government agency.” Id. at 4 n.3, R.R.
at 246a.
In regard to item 2 of the Request, however, the OOR concluded that
the Service Provider Monthly Invoices were subject to access as records directly
related to Real Alternatives’ performance of a governmental function pursuant to the
12
Grant Agreement. Id. at 5-6, R.R. at 247a-48a. The OOR determined that the
requested invoices “include[d] information beyond mere financial information, i.e.,
service provider reimbursement amounts,” as they contained “additional information
specifically describing the services provided by the service providers in furtherance
of [Real Alternatives’] agreement with [DHS].” Id. at 5, R.R. at 247a. The OOR
reasoned that “[i]t is difficult to imagine information more relevant to the
performance of a governmental function tha[n] information describing the services
performed pursuant to that governmental function.” Id. Further, the OOR
determined that Real Alternatives’ reliance on UnitedHealthcare and Buehl v. Office
of Open Records, 6 A.3d 27 (Pa. Cmwlth. 2010), was misplaced, as “those cases
involved a request for the amount of payments made by a government contractor to
subcontractors for services at prices separately negotiated from the prices negotiated
between the government and its prime contractor,” whereas, here, “subcontractors
are reimbursed by the government for the cost of services provided.”9 Id. at 6-7,
R.R. at 248a-89a (citing UnitedHealthcare; Buehl). The OOR observed that “the
amount[] paid to the subcontractors for services provided [is] the same amount[]
paid by the government,” even though “the amount of funds reimbursed to
subcontractors is disclosed to [DHS] in the aggregate,” rather than “by individual
subcontractor.” Id. Thus, the OOR determined that “the reimbursement information
9
In UnitedHealthcare, we considered whether disclosure of requested nursing home
provider rates was required under RTKL Section 506(d)(1) and noted that it was “clear” from the
record “that knowledge of the [r]equested [r]ates was not necessary for DHS to assure compliance
with the [government] contract,” yet remanded the matter to the OOR to “analyze how the amount
of the [nursing home provider r]ates directly relate[d] to the [government contractors] performing
their governmental function under the [] contract[.]” UnitedHealthcare, 171 A.3d at 964. In
Buehl, wholesale prices paid by a contractor for goods resold to the Department of Corrections
were not subject to disclosure under Section 506(d)(1) the RTKL. See Buehl, 6 A.3d at 31. We
note that Real Alternatives did not cite Buehl in its remand position statement. See Remand
Position Statement, 10/25/19 at 1-4, R.R. at 230a-33a.
13
contained within the Service Provider Monthly Invoices [is] not the type of
information permitted to be withheld under UnitedHealthcare and Buehl.” Id.Nevertheless, the OOR concluded that the names of individuals receiving counseling
services are protected pursuant to the constitutional right to privacy and, therefore,
require redaction. Id. at 7-9, R.R. at 249a-51a.
Real Alternatives filed a petition for reconsideration, asserting that
although the Service Provider Monthly Invoices do not divulge the names of persons
receiving services, they nonetheless reference such persons by means of confidential
identification numbers which require redaction under RTKL Section 708(b)(5), 65
P.S. § 67.708(b)(5). Real Alternatives’ Petition for Reconsideration and Request for
Remand at 1-2, ¶¶ 3-5, R.R. at 253a-54a (citing First Bagatta Affidavit at 4-5, ¶¶ 30-
31, R.R. at 77a-78a).
On September 11, 2020, the OOR issued a revised final determination
directing DHS to redact the confidential identification numbers from the Service
Provider Monthly Invoices prior to disclosure. OOR Final Determination, 9/11/20
at 9, R.R. at 306a. The OOR concluded that individual identification numbers
constitute “personal identification information” excepted from disclosure pursuant
to RTKL Section 708(b)(6), 65 P.S. § 67.708(b)(6), and protected by the
constitutional right to privacy. Id. at 8, R.R. at 305a (citing Crew v. Pa. Dep’t of
Corr. (Pa. Cmwlth., No. 1006 C.D. 2010, filed Nov. 19, 2010), slip op. at 2).
However, the OOR concluded that Real Alternatives’ request for redaction of other
information, such as counseling time provided, classes attended, and services
provided, exceeded the scope of this Court’s remand order and, thus, could not be
considered. OOR Final Determination, 9/11/20 at 9 n.4, R.R. at 306a (citing Levy v.
Senate of Pa., 94 A.3d 436, 442 (Pa. Cmwlth. 2014)). Nonetheless, the OOR noted
14
that medical information contained within non-medical records could be subject to
disclosure if the records did not identify the individual connected with the medical
information. Id. (citing Dep’t of Corr. v. St. Hilaire, 128 A.3d 859 (Pa. Cmwlth.
2015)).10
Requester again petitioned for review in this Court.11
II. Discussion
The RTKL “is remedial legislation designed to promote access to
official government information in order to prohibit secrets, scrutinize the actions of
public officials, and make public officials accountable for their actions[.]” Bowling
v. Off. of Open Recs., 990 A.2d 813, 824 (Pa. Cmwlth. 2010), aff’d, 75 A.3d 453(Pa. 2013). In 2009, the General Assembly replaced the former Right-to-Know Act12
with the current RTKL, thereby significantly expanding public access to
10
In its petition for reconsideration of the OOR’s June 26, 2020 final determination, Real
Alternatives requested that the OOR conduct in camera review of “an exemplar Service Provider
Monthly Invoice” before issuing a revised final determination. Petition for Reconsideration at 5,
¶ 27, R.R. at 257a. The OOR denied Real Alternatives’ request, stating that Real Alternatives’
comprehensive description of the contents of the Service Provider Monthly Invoices rendered in
camera review unnecessary. OOR Final Determination, 9/11/20 at 5 n.9, R.R. at 306a.
11
“This Court’s standard of review of a final determination of the OOR 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). “As to factual disputes, this Court may exercise functions of a fact-finder, and has the
discretion to rely upon the record created below or to create its own.” Dep’t of Lab. & Indus. v.
Heltzel, 90 A.3d 823, 828 (Pa. Cmwlth. 2014) (en banc) (citing Bowling v. Off. of Open Recs., 75
A.3d 453 (Pa. 2013)). “A court reviewing an appeal from an OOR [appeals] officer is entitled to
the broadest scope of review, a review of the entire record on appeal along with other material,
such as a stipulation of the parties, or an in camera review of the documents at issue, and we may
further supplement the record through hearing or remand.” Pa. Dep’t of Lab. & Indus. v.
Darlington, 234 A.3d 865, 871 n.6 (Pa. Cmwlth. 2020) (citation omitted).
12
Act of June 21, 1957, P.L. 390, as amended, 65 P.S. §§ 66.1–66.4
15
governmental records in order to promote government transparency. Levy v. Senate
of Pa., 65 A.3d 361, 368 (Pa. 2013). Section 506(d)(1) of the RTKL provides:
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
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). Thus, the RTKL preserves “some level of public access to
information about governmental functions . . . where an agency chooses to contract
out the performance of that function to a third[ ]party.” UnitedHealthcare, 171 A.3d
at 963 (citation omitted). This Court has clarified that “Section 506(d)(1) does not
reach all records in possession of a private contractor that relate to the governmental
function; rather, the records reached are only those that relate to performance of that
function.” Allegheny Cnty. Dep’t of Admin. Servs. v. Parsons, 61 A.3d 336, 346 (Pa.
Cmwlth. 2013); see UnitedHealthcare, 171 A.3d at 963 (citing Parsons); Dental
Benefit Providers, Inc. v. Eiseman, 86 A.3d 932, 939 (Pa. Cmwlth. 2014), aff’d, 124
A.3d 1214 (Pa. 2015) (holding that non-exempt records of a third party contracting
with a governmental agency are subject to disclosure only if the information directly
relates to the performance of a governmental function). “This finely drawn
distinction is critical to properly analyzing and applying [Section 506(d)(1)].”
Parsons, 61 A.3d at 346.
Generally, an agency bears the burden of proving a record is exempt
from disclosure. Parsons, 61 A.3d at 342. In that regard, “[t]hird-party contractors
in possession of requested records are placed in the shoes of . . . [the] agency for
purposes of the burden of proof when the contractor performs a governmental
16
function on behalf of the agency[] and those records directly relate to the contractor’s
performance of that function.” Parsons, 61 A.3d at 342 (citing SWB Yankees, 45
A.3d 1029) (noting that RTKL Section 506(d)(1) “recasts certain third-party records
bearing the requisite connection to government as public records ‘of the government
agency’”) (brackets omitted).
A. PDAAs
On appeal, Requester argues the OOR erred in determining that the
PDAAs requested pursuant to item 1 of the Request are not accessible under Section
506(d)(1) of the RTKL. See Requester’s Br. at 14-15 (citing 65 P.S. § 67.506(d)(1)).
Requester contends Real Alternatives’ performance of services to private service
providers relates directly to Real Alternatives’ performance of a governmental
function on behalf of DHS. See id. at 15. Requester also asserts that whether DHS
is a party to the PDAAs is not determinative of whether those agreements are
accessible under the RTKL. See id. at 17. Further, Requester maintains that the
Second Bagatta Affidavit failed to comply with this Court’s directive on remand to
identify services provided pursuant to the PDAAs that were distinguishable from the
performance of services in furtherance of the Grant Agreement. See id. at 15-18.
Thus, Requester contends that Real Alternatives has “failed to meet its burden of
proof to establish that the PDAAs are not public[.]” Id. at 11.
Real Alternatives counters that, in response to this Court’s instructions
on remand, it proffered an additional affidavit “specifically enumerating services
provided under the PDAAs that were not part of, and could not be part of, the
Program described in the [] Grant Agreement[.]” Real Alternatives’ Br. at 20. For
instance, Real Alternatives cites Bagatta’s attestation as to the use of funds generated
17
by the PDAAs to make presentations regarding the creation of programs promoting
alternatives to abortion in other states, to subsidize its operations both locally and
nationally, to cover expenses incurred advancing “life-affirming programming” that
were not “chargeable costs” under the Grant Agreement, and to develop sexual
health education websites. Id. at 21 (citing Second Bagatta Affidavit at 2, ¶ 31, R.R.
at 236a). Maintaining that these services “were paid with private money paid by the
[s]ervice [p]roviders,” Real Alternatives insists that Bagatta “made plain, in effect,
that it was an agreement among private parties to ensure that a mutually shared
interest was advanced both in Pennsylvania and elsewhere” and that the PDAAs
constitute “quintessential[ly] private agreement[s] among private parties for
benevolent purposes.” Id. at 21-22. Further, Real Alternatives contends that the
Second Bagatta Affidavit “was [] buttressed on remand by the [a]ppeals [o]fficer’s
in camera review of a PDAA.” Id. at 22. Real Alternatives asserts that proffering
the sample copy of a PDAA for in camera review by the OOR satisfied its “limited
burden . . . to demonstrate that the requested records were private records that were
not part of the Program and the [2012] Grant Agreement.” Id. (citing Off. of
Governor v. Davis, 122 A.3d 1185, 1194 (Pa. Cmwlth. 2015) (citation omitted)
(holding that “records reviewed in camera are sufficient evidence for an agency to
meet its burden of proof”); Parsons, 61 A.3d at 342 (citing RTKL Section 305, 65
P.S. § 67.305)13 (stating that “[t]he presumption of public nature shared by records
in possession of a local agency does not apply to records that are in possession of a
third party”)).
13
“A record in the possession of a Commonwealth agency or local agency shall be
presumed to be a public record.” RTKL Section 305(a), 65 P.S. § 67.305(a).
18
As summarized above, the OOR determined that the PDAAs did not
relate directly to Real Alternatives’ performance of a governmental function
pursuant to the Grant Agreement and, thus, were not publicly disclosable under
RTKL Section 506(d)(1), 65 P.S. § 67.506(d)(1). See OOR Final Determination,
9/11/20 at 4, R.R. at 301a. Acknowledging overlap between certain types of services
performed pursuant to both the PDAAs and the Grant Agreement, the OOR
nevertheless concluded the PDAAs did not bear the requisite connection under
RTKL Section 506(d)(1), because those agreements obligated Real Alternatives “to
provide services to the [s]ervice [p]roviders for which the [s]ervice [p]roviders
compensate[d] [Real Alternatives], . . . as opposed to the service providers providing
services to [Real Alternatives] in furtherance of [Real Alternatives’] agreement with
[DHS].” Id. at 3-4, R.R. at 300a-01a; Id. at 4 n.3, R.R. at 300a. We agree with this
reasoning.
We acknowledge that the PDAAs provide for a funding scheme which
appears to calculate payments due to Real Alternatives as withholding of a
percentage of Grant Agreement funds paid by Real Alternatives to service providers.
See PDAA Sample Copy, Supplemental Record. We recognize that such a link
between the payments made under the PDAAs and those made under the Grant
Agreement could give rise to questions concerning the de facto separateness of the
PDAAs. However, the reference to the Grant Agreement rates in the sample PDAA
relates solely to the calculation of payments for services provided by Real
Alternatives to service providers, not to the scope of the Grant Agreement or to any
services to be provided by the service providers under the Grant Agreement. The
sources and propriety of the providers’ payments to Real Alternatives are not before
us. We express no opinion on such issues, which are more properly the subject of
19
audits as provided in Section 403 of The Fiscal Code, Act of April 9, 1929, P.L. 343,
as amended, 72 P.S. § 403, the results of which may be publicly accessible under
the RTKL. See Dep’t of Pub. Welfare v. Chawaga, 91 A.3d 257, 258 (Pa. Cmwlth.
2014) (stating that a performance audit analyzing a government contractor’s
compliance with two Department of Public Welfare contracts was accessible under
the RTKL in the absence of a demonstrated exemption; the performance audit report
was “created, received or retained pursuant to law or in connection with a
transaction, business or activity of the agency” and was therefore a “record” under
Section 102 of the RTKL, 65 P.S. § 67.102).
The PDAA reviewed in camera by the OOR and, subsequently, by this
Court is a one-page document that merely contains an indefinite, open-ended
statement outlining the general purpose for which Real Alternatives shall use
PDAA-generated funds. See PDAA Sample Copy, Supplemental Record. As noted
above, the First Bagatta Affidavit attests that Real Alternatives and service providers
entered into the PDAAs to “develop and advance other life affirming programs both
locally and nationally.” First Bagatta Affidavit at 4, ¶ 21, R.R. at 77a (emphasis
added). The Second Bagatta Affidavit, quoted above, is consistent with that
statement but provides a more detailed attestation that the PDAAs are separate
agreements specifically created to address programs other than Pennsylvania’s
Alternatives to Abortion Services Program, which is the subject of the Grant
Agreement.14 See Second Bagatta Affidavit at 2-3, ¶¶ 9-17, R.R. at 236a-37a. We
14
Bagatta attested that the PDAAs generated fees which subsidized only activities which
fell “completely outside of the [] Grant Agreement.” Second Bagatta Affidavit at 2, ¶ 10, R.R. at
237a. Nevertheless, we note that the Second Bagatta Affidavit indicates that Real Alternatives has
utilized funds generated by the PDAAs to subsidize both activities which overlap with and those
which exceed the scope of the Grant Agreement. See Second Bagatta Affidavit at 2-3, R.R. at
236a-37a. However, the non-responsiveness of a portion of a record may not serve as a basis for
20
agree with the OOR that the PDAAs, together with the First and Second Bagatta
Affidavits, sufficiently establish that the PDAAs are agreements relating to services
separate from those which are subject to and reimbursable under the Grant
Agreement.
Further, this Court has previously determined that financial information
concerning payments made under a government contract does not, standing alone,
constitute information pertaining to performance of a government function. In
UnitedHealthcare, the requester sought disclosure of rates paid by DHS to managed
care organizations participating in a medical assistance program. UnitedHealthcare,
171 A.3d at 946. We explained that the purpose of allowing access only to records
directly related to performance of a governmental function was to “prevent[] access
to records that may relate to the contract but do not relate to its performance.” Id. at
963. Thus, the pertinent issue was “whether the information sought had a direct
bearing on the third-party contractor’s obligations” under its contract with the
agency. Id. at 964. We reasoned that the rates requested in Baron did not relate
directly to performance of the government contract under RTKL Section 506(d)(1),
65 P.S. § 67.506(d)(1), because knowledge of those rates was not necessary for DHS
to assure compliance with the contract and there was no indication that DHS used
the rate information to monitor compliance with or otherwise oversee the contract;
rather, DHS administered the medical assistance program without that information.
171 A.3d at 964.
Likewise, here, there is no indication that the rates charged by Real
Alternatives for services it performs for others under the PDAAs have any direct
redacting that portion or for withholding the entire record. See Haverstick v. Pa. State Police (Pa.
Cmwlth., No. 1042 C.D. 2020, filed Apr. 12, 2022), slip op. at 11 (citing and discussing Smart
Commc’ns Holding, Inc. v. Wishnefsky, 240 A.3d 1014 (Pa. Cmwlth. 2020)).
21
bearing on Real Alternatives’ obligations to DHS under the Grant Agreement. For
example, by analogy to the analysis in UnitedHealthcare, there is no suggestion here
that DHS has knowledge of the rates paid from service providers to Real Alternatives
under the separate PDAAs or that such knowledge of rates paid under separate
contracts is necessary for DHS to oversee or monitor compliance with the Grant
Agreement. Without any evidence of a direct relationship between the PDAAs and
Real Alternatives’ performance of its contractual obligations to DHS under the Grant
Agreement, we cannot find that there is anything in the one-page PDAA form
agreement that relates to the performance of a governmental function.
For these reasons, and consistent with our precedent in
UnitedHealthcare, we conclude that the rate information in the PDAAs does not
relate directly to the performance of a governmental function. Therefore, we affirm
the OOR’s September 11, 2020 final determination with respect to the PDAAs
sought pursuant to item 1 of the Request.
B. Service Provider Monthly Invoices
“Section 506(d)(1) does not reach all records in possession of a private
contractor that relate to the governmental function; rather, the records reached are
only those that relate to performance of that function.” Parsons, 61 A.3d at 346(original emphasis partially deleted). Real Alternatives challenges the OOR’s
determination that redacted copies of the Service Provider Monthly Invoices are
accessible under RTKL Section 506(d)(1). Real Alternatives’ Br. at 27. Real
Alternatives asserts that the OOR erred in distinguishing UnitedHealthcare and
Buehl. Id. at 28-29. Real Alternatives contends that as in those cases, the invoices
here constitute “mere cost information” that is not disclosable under the RTKL, as
22
it is not used by DHS to monitor compliance with the Grant Agreement or for
purposes of oversight. See id. at 28 (citing UnitedHealthcare, 171 A.3d at 964;
Buehl, 6 A.3d at 31). Real Alternatives maintains that DHS monitors compliance
with the Grant Agreement by reviewing monthly expenditure reports, which contain
information from Service Provider Monthly Invoices in aggregate form, and that this
aggregated information “compose[s] just [one] part of dozens of budget line
expenses submitted to DHS for a suite of services provided by Real Alternatives
under the Program.” Id. at 29-30. Thus, Real Alternatives contends that the
requested Service Provider Monthly Invoices do not directly relate to performance
of a governmental function, but rather, constitute mere cost information that DHS
does not utilize to monitor compliance with the Grant Agreement. See id. at 30
(citing Herrling Attestation at 2, ¶ 12, R.R. at 171a). We reject this argument and
agree with the OOR that the Service Provider Monthly Invoices are accessible under
RTKL Section 506(d)(1), 65 P.S. § 67.506(d)(1), subject to the redaction of
confidential identification numbers.15
On remand to the OOR, Bagatta attested that in addition to containing
the amount owed to service providers for the provision of services reimbursable
under the Grant Agreement, each Service Provider Monthly Invoice additionally
identifies the locations at which clients received services, the amount of counseling
time provided per client, classes attended by clients and the services provided to
clients. Second Bagatta Affidavit at 3, ¶¶ 19, 20-21, R.R. at 237a. Based on this
evidence, the OOR determined that the requested invoices “include[d] information
beyond mere financial information,” as they contained “additional information
specifically describing the services provided by the service providers in furtherance
15
Neither party requests in camera review of the Service Provider Monthly Invoices.
23
of [Real Alternatives’] agreement with [DHS].” OOR Final Determination, 6/26/20
at 5, R.R. at 247a. As the OOR aptly observed, “[i]t is difficult to imagine
information more relevant to the performance of a governmental function tha[n]
information describing the services performed pursuant to that governmental
function.” OOR Final Determination, 6/26/20 at 5, R.R. at 247a.
The Service Provider Monthly Invoices contain descriptions of services
performed by service providers in furtherance of the Grant Agreement, which are
reimbursable under that agreement. Therefore, the Service Provider Monthly
Invoices “have a direct relationship to [Real Alternatives’] contractual obligations”
and are disclosable under RTKL Section 506(d)(1), 65 P.S. § 67.506(d)(1).
Finally, Real Alternatives asserts that, even if deemed publicly
accessible, the Service Provider Monthly Invoices are nevertheless subject to further
redaction. Real Alternatives’ Br. at 31. Specifically, Real Alternatives contends that
the Service Provider Monthly Invoices should be redacted to omit the amount of
counseling time provided per client, classes attended, services provided, and the total
reimbursable amount due, as this information constitutes a “record of an individual’s
medical, psychiatric or psychological history or disability status, including an
evaluation, consultation, prescription, diagnosis or treatment or related information
that would disclose individually identifiable health information” pursuant to RTKL
Section 708(b)(5). Id. at 35-36 (quoting 65 P.S. § 67.708(b)(5)). We disagree.
In St. Hilaire, a reporter filed an RTKL request with the Department of
Corrections seeking all records documenting inmate injuries and deaths as well as
employee injuries and deaths during a certain timeframe. See St. Hilaire, 128 A.3d
at 860. We held that the requested records were not exempt from disclosure under
24
the medical records exemption contained in RTKL Section 708(b)(5),16 reasoning
that the “[r]equestor only sought non-identifiable injury information; she did not
seek medical records, the identity of inmates, or any other identifiable health
information. . . . [T]o the extent that the reports do contain such information, they
can be redacted/de-identified in accordance with [S]ection 706 of the RTKL.”17 St.
Hilaire, 128 A.3d at 866 (emphasis added). Thus, we agree with the OOR that the
Service Provider Monthly Invoices are disclosable and do not require redaction
16
RTKL Section 708(b)(5) exempts the following from access under the RTKL:
A record of an individual’s medical, psychiatric or psychological
history or disability status, including an evaluation, consultation,
prescription, diagnosis or treatment; results of tests, including drug
tests; enrollment in a health care program or program designed for
participation by persons with disabilities, including vocation
rehabilitation, workers’ compensation and unemployment
compensation; or related information that would disclose
individually identifiable health information.
65 P.S. § 67.708(b)(5) (emphasis added).
17
RTKL Section 706 provides, in relevant part:
If an agency determines that a public record, legislative record or
financial record contains information which is subject to access as
well as information which is not subject to access, the agency’s
response shall grant access to the information which is subject to
access and deny access to the information which is not subject to
access. If the information which is not subject to access is an
integral part of the public record, legislative record or financial
record and cannot be separated, the agency shall redact from the
record the information which is not subject to access, and the
response shall grant access to the information which is subject to
access. The agency may not deny access to the record if the
information which is not subject to access is able to be redacted.
65 P.S. § 67.706.
25
beyond the omission of individually identifiable health information—i.e., clients’
confidential identification numbers. See id.18
III. Conclusion
For the reasons discussed above, we affirm the OOR’s final
determination.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
President Judge Cohn Jubelirer and Judge Wallace did not participate in the decision
of this case.
18
As recounted above, we instructed the OOR on remand to determine whether the Service
Provider Monthly Invoices constitute “invoices, receipts and expenditure documentation
submitted by Pennsylvania ‘service providers’ to Real Alternatives, as requested,” in the event that
the OOR deemed the Service Provider Monthly Invoices public records under the RTKL. See
Equity Forward, slip op. at 21 (quotation marks omitted). Although the OOR did not expressly
discuss this question, its conclusion that the Service Provider Monthly Invoices are accessible
under the RTKL indicates that the OOR considers these records responsive to item 2 of the
Request. See OOR Final Determination, 9/11/20 at 5-10, R.R. at 302a-07a. Neither party disputes
the responsiveness of the Service Provider Monthly Invoices to the Request.
26
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Real Alternatives, : CASES CONSOLIDATED
Petitioner :
:
v. :
:
Department of Human Services :
and Equity Forward (Office of :
Open Records), : No. 986 C.D. 2020
Respondents :
:
:
Equity Forward and Mary Alice Carter, :
Petitioners :
:
v. :
:
Pennsylvania Department of Human :
Services (Office of Open Records), : No. 1002 C.D. 2020
Respondent :
ORDER
AND NOW, this 19th day of July, 2022, the September 11, 2020 final
determination of the Office of Open Records is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Real Alternatives, :
Petitioner :
:
v. : No. 986 C.D. 2020
:
Department of Human Services and :
Equity Forward (Office of Open Records), :
Respondents :
Equity Forward and Mary Alice Carter, :
Petitioners :
:
v. : No. 1002 C.D. 2020
: ARGUED: March 7, 2022
Pennsylvania Department of Human :
Services (Office of Open Records), :
Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
DISSENTING OPINION BY
SENIOR JUDGE LEADBETTER FILED: July 19, 2022
I join the Majority’s result and analysis concerning the Service Provider
Monthly Invoices but must respectfully dissent regarding the Program Development
and Advancement Agreements (PDAAs). I believe that the nature of those contracts
between Real Alternatives and the Service Providers is so inextricably bound with
Real Alternatives’ performance of its contract with the Pennsylvania Department of
Human Services (DHS) that they directly relate thereto. Examination of the sample
PDAA provided in camera (all of the PDAAs, we are told, have identical terms)
shows that, contrary to the Bagatta Affidavit, the money “paid” by the Service
Providers to Real Alternatives is not private money earned and owned by the Service
Providers.1 Rather, under the terms of the PDAAs, Real Alternatives withholds a
fixed percentage of the money invoiced by and due the Service Providers and keeps
it to underwrite other activities for which DHS will not pay. In other words, it is a
scheme to get DHS to unknowingly pay Real Alternatives for non-government
activities, and it uses the PDAAs as the vehicle to that end.
Thus, I believe that the PDAAs directly relate to the performance of
Real Alternatives’ government function. Real Alternatives does no counselling
itself; that function is ceded to the Service Providers. The government function
which DHS delegates to Real Alternatives is to recruit Service Providers and be the
conduit through which DHS pays them certain amounts for specific services. The
PDAAs amend that agreement such that DHS is also in fact paying Real Alternatives
to do different things for which DHS has not contracted. Thus, the PDAAs directly
relate to Real Alternatives’ performance of its government function because they
change the scope and extent of the functions it contracted with DHS to perform.
Finally, one overarching purpose of the Right-to-Know Law (RTKL)2
is to make transparent the way in which government funds are being spent. It is,
“remedial legislation to facilitate government transparency and promote
accountability.” McKelvey v. Pa. Dep’t of Health, 255 A.3d 385, 399 (Pa. 2021). A
device which re-routes government money through a “private” contract in order to
shield it from public scrutiny subverts that purpose. Therefore, disclosure is
appropriate not only under the terms of the RTKL but serves its underlying purpose
1
(Second Bagatta Aff. at 2, ¶10; Reproduced Record at 236a.)
2
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
BBL - 2
as well. For all the foregoing reasons, I would reverse the decision of the OOR, and
require disclosure of the PDAAs.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
BBL - 3