UnitedHealthcare of PA, Inc. v. DHS (OOR)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
UnitedHealthcare of Pennsylvania, Inc., :
:
Petitioner :
:
v. : No. 245 C.D. 2021
: Argued: February 7, 2022
Department of Human Services :
(Office of Open Records), :
:
Respondent :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: December 15, 2022
In this appeal, UnitedHealthcare of Pennsylvania (United) petitions for
review of the Final Determination of the Office of Open Records (OOR) denying its
appeal of its request for records from the Pennsylvania Department of Human
Services (DHS) under the provisions of the Right-to-Know Law (RTKL).1 After
careful review, we affirm.
I.
In order to understand the claims raised in the instant appeal, a brief
recounting of a number of related cases is necessary. This Court has recently noted:
1
Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
[The HealthChoices Medicaid (HealthChoices)
Program] is Pennsylvania’s mandatory managed care
program for physical health services to Medicaid
participants. Managed care providers (MCOs) administer
the HealthChoices Program in five Pennsylvania zones -
Northeast, Southeast, Lehigh-Capital, Northwest, and
Southwest. [DHS] contracts with multiple MCOs to
administer HealthChoices Program benefits and services
in each zone. United is one of those MCOs.
***
In September 2015, [DHS] issued Request for
Proposals (RFP) 06-15 for new contracts for
administration of the HealthChoices Program in all five
zones. United submitted a proposal for all five zones.
However, [DHS] did not select United to negotiate for new
contracts.
United claim[ed that DHS] stated that in evaluating
applications under RFP 06-15, it applied what it called a
“heritage factor” in evaluating the proposals by all
applicants. See Aetna Better Health of P[ennsylvani]a,
Inc. v. Dep[artmen]t of Hum[an] Serv[ice]s (Pa. Cmwlth.,
No. 351 M.D. 2016, filed July 19, 2016), slip op. at 4-5[.]
[DHS] applied the heritage factor to favor any existing
contractor MCO having at least a 25% market share of
Medicaid participants, reasoning that the disruption likely
to arise from cessation of such an applicant’s services
would outweigh some shortfall in the rest of the
applicant’s evaluation scores. Id. However, [DHS] did
not disclose in the RFP that it would be applying the
heritage factor as part of its evaluation process.
Another applicant, Aetna Better Health of
Pennsylvania, Inc. (Aetna), filed a bid protest alleging the
heritage factor was a secret criterion used to deprive Aetna
of new contracts and to favor other MCOs despite Aetna’s
higher proposal scores. [DHS] responded by asserting that
Aetna could not protest based on that issue. Aetna then
filed a petition for review. This Court enjoined the RFP
06-15 procurement and ordered that if [DHS] chose to
review Aetna’s bid protest, that review should be by an
2
independent hearing officer not employed by [DHS] and
not connected to the RFP. See Aetna Better Health, slip
op. at 32.
[DHS] then withdrew RFP 06-15 and reissued it as
RFP 06-15 (Reissued). United again submitted a proposal.
Whether [DHS] applied the heritage factor again is
unclear. However, United and other applicants filed bid
protests to RFP 06-15 (Reissued), claiming that [DHS] had
again applied the heritage factor in a manner designed to
favor the MCOs that previously received contracts with
[DHS], and that [DHS] had secret discussions with another
MCO about modifying its bid proposal in order to pass
[DHS’s] readiness review procedure. [DHS] denied the
bid protests. This Court reversed [DHS], concluding that
discussions with MCOs about bid modifications and
readiness review violated the RFP and the Commonwealth
Procurement Code (Procurement Code)[2] because only
[DHS’s] designated Issuing Officer, Karen Kern [(Kern)],
may engage in such discussions. See UnitedHealthcare of
P[ennsylvani]a, Inc. v. Dep[artmen]t of Human Serv[ice]s
(Pa. Cmwlth., No. 790 C.D. 2017, filed Apr[il] 10, 2018),
slip op. at 27[.]
***
In October 2019, [DHS] issued [Request for
Applications 07-19 (RFA)] pursuant to the Procurement
Code seeking applications for new contracts to administer
the HealthChoices Program. United submitted an
application for all five zones. In July 2020, [DHS] notified
United that it had selected United for negotiations only in
the Southeast zone. United requested a debriefing as
provided under the RFA and the Commonwealth’s
Procurement Handbook.
United filed a series of bid protests, which were
later consolidated. On February 17, 2021, the [Secretary
of Human Services (Secretary)] issued the Final
Determination denying United’s bid protests. United filed
2
62 Pa. C.S. §§101-2311.
3
a petition for review in this Court. Several competing
applicants under the RFA [] intervened in th[e] matter.
UnitedHealthcare of Pennsylvania, Inc. v. Department of Human Services (Pa.
Cmwlth., No. 165 C.D. 2021, filed November 17, 2021), slip op. at 2-4 (footnotes
omitted). Ultimately, this Court affirmed the Secretary’s Final Determination
denying United’s bid protests under the RFA and the Procurement Code. Id.
II.
With respect to the instant appeal, on September 18, 2020, United filed
a request with DHS under the RTKL (Second Request)3 seeking the following
relevant documents: (1) communications with any applicant related to the RFA; (2)
any documents or communications related to the readiness-review process described
in the RFA; (3) any documents or communications related to DHS’s decision to
extend the incumbent HealthChoices Program for up to two years; (4) any
documents or communications, both internal and external, related to debriefing
requests by any RFA applicant; (5) any documents or communications, both internal
and external, related to Contractor Partnership Program (CPP) submittals under the
RFA, including copies of each applicants’ CPP submittal and any review or
assessment of such submittals by DHS; (6) any documents or communications
between DHS and any corporate reference for an applicant under the RFA; and (7)
any documents produced by DHS since July 2, 2020, in response to a RTKL request
3
United had submitted a prior request with DHS under the RTKL (First Request). United’s
appeal with respect to the proceedings involving the First Request is docketed in this Court at No.
1117 C.D. 2020. See UnitedHealthcare of Pennsylvania, Inc. v. Pennsylvania Department of
Human Services (Office of Open Records) (Pa. Cmwlth., No. 1117 C.D. 2020, filed December 15,
2022). The instant appeal and that appeal were not consolidated, but were argued seriately before
this Court.
4
by any organization that also submitted an application in response to the RFA. See
OOR Docket No. 2020-2750 Exhibit 1 at Exhibit A.
On November 2, 2020, DHS responded to the Second Request. For
Item 1, DHS granted the request in part and denied it in part. DHS provided copies
of communications with any applicant since July 2, 2020, but redacted proposal and
evaluation information that is exempt under Section 708(b)(26) of the RTKL, and
personal identification information that is exempt under Section 708(b)(6)(i)(A).
OOR Docket No. 2020-2750 Exhibit 1 at 16-17.
With respect to Item 2, DHS noted that the readiness-review process
had not yet begun because of pending procurement protests, but it would provide
responsive records with redacted personal identification information under Section
708(b)(6)(i)(A); redacted predecisional deliberations that are exempt under Section
708(b)(10)(i)(A); redacted information subject to the attorney-client privilege that is
excluded from the definition of a “public record” under Section 102 of the RTKL;
and information that is excluded under the attorney work-product doctrine.4 OOR
Docket No. 2020-2750 Exhibit 1 at 17.
With respect to Item 3, DHS stated that, after a reasonable search of its
records, it did not have the requested records in its possession or under its custody
or control. OOR Docket No. 2020-2750 Exhibit 1 at 17-18.
With respect to Item 4, DHS granted the Second Request in part and
denied it in part, redacting: proposal and evaluation information under Section
708(b)(26); personal identification information under Section 708(b)(6)(i)(A);
4
65 P.S. §67.102. Section 102 defines “public record,” in relevant part, as “[a] record,
including a financial record, of a Commonwealth or local agency that . . . is not protected by a
privilege.” In turn, Section 102 defines “privilege,” in pertinent part, as “[t]he attorney-work
product doctrine, the attorney-client privilege, . . . or other privilege recognized by a court
interpreting the laws of this Commonwealth.” Id.
5
predecisional deliberations under Section 708(b)(10)(i)(A); information subject to
the attorney-client privilege under Section 102; and information subject to the
attorney work-product doctrine under Section 102. OOR Docket No. 2020-2750
Exhibit 1 at 18.
With respect to Item 5, DHS granted the Second Request in part and
denied it in part, noting that information regarding the CPP was provided during the
Pre-Application Conference for the RFA and that the PowerPoint presentation is
available in the eMarketplace as part of Addendum 3. OOR Docket No. 2020-2750
Exhibit 1 at 18-19. DHS also explained that CPP submittals are part of the
applications submitted in response to the RFA so they are exempt under Section
708(b)(26) until the award of the contract. Id. at 19.
With respect to Item 6, DHS granted in part and denied in part,
redacting proposal information and evaluation documents under Section 708(b)(26),
and personal identification information under Section 708(b)(6)(i)(A). OOR Docket
No. 2020-2750 Exhibit 1 at 19.
With respect to Item 7, DHS granted the request, interpreting it as
asking for the exact documents as they were produced in response to RTKL requests
because the Second Request states, “any documents produced,” and many of the
records were redacted when given to the requesters. OOR Docket No. 2020-2750
Exhibit 1 at 19. On December 11, 2020, DHS notified United that the responsive
records would be released in two batches, and the first batch was provided to United
on December 15, 2020.
On December 30, 2020, United appealed DHS’s response to OOR
challenging DHS’s redactions in Items 1, 2, 4, and 6, and asserting that DHS was
required to provide an exemption log or some other itemization of the withheld
6
information. OOR Docket No. 2020-2750 Exhibit 1 at 2, 3-4.5 On January 13, 2021,
United sent a submission to OOR reiterating that the appeal is specific to the
redactions within the records that DHS provided in response to the Second Request.
United also withdrew any portion of its appeal that related to information that is trade
secrets or confidential and proprietary information from other parties, and withdrew
the appeal as to application materials submitted by any applicant.
On January 19, 2021, DHS submitted a position statement reiterating
its grounds for denial and submitted the affidavits of Kern;6 Andrea Bankes; Barry
5
OOR subsequently granted the applications for Direct Interest Participant status in the
appeal of other applicants, including Geisinger Health Plan, AmeriHealth Caritas Health Plan, and
UPMC for You, Inc..
6
In relevant part, Kern’s affidavit restates the information regarding the RFA’s Evaluation
Committee, and that negotiations had not yet commenced and DHS had not yet awarded an
agreement as provided in her prior affidavit. See OOR Docket No. 2020-2750 Exhibit 6 at 22-24.
With respect to Items 1, 4, and 6 of United’s Second Request, the affidavit states the following, in
pertinent part:
27. I responded to and interpreted the request in [Items] 1, 4, and 6
to encompass records that include information and portions of the
[a]pplicants’ applications to fulfill [DHS’s] needs explained in [the
RFA].
a. Specifically, the communications between [DHS] and any
[a]pplicant related to [the RFA] since July 2, 2020, including
documents or communications related to debriefing
requests, and bid protests contain parts and information from
an [a]pplicant’s proposal and sets forth plans and
information for consideration to fulfill the service needs of
[DHS].
b. Documents and communications responsive to [Item] 6
are documents and communications between [DHS] and
corporate references that reflect information regarding each
[a]pplicant’s corporate reference as provided in the
(Footnote continued on next page…)
7
applications and contain information of communications
with those references that was requested as part of the
application process and used in the evaluation process. . . .
28. I responded to and interpreted [United’s Second Request] in
[Item] 4 to encompass internal deliberative documents and
communications relating to debriefing requests by [a]pplicants
about [the RFA].
a. Specifically, documents and communications responsive
to [Item] 4 are internal to [DHS], reflect the deliberations of
[DHS] staff relating to debriefings, and occur prior to the
requested debriefings.
29. I responded to and interpreted the request in [Items] 1, 4, and 6
to encompass records that include records of the evaluation
committee members.
a. Documents responsive to [Items] 1 and 4 include
debriefing documents which contain the evaluation
committee members’ notes regarding the strengths and
weaknesses of the [a]pplicants.
b. Documents responsive to [Item] 6 are documents and
communications between [DHS] and corporate references
that reflect information regarding each [a]pplicant’s
corporate reference as provided in the applications and
contain information of communications with those
references that was requested as part of the application
process and used in the evaluation process. . . .
30. I responded to and interpreted the request in [Item] 4 to
encompass communications with [DHS’s] Legal office. The
communications were sent seeking advice regarding requests for
debriefings.
31. The documents responsive to [Items] 1, 4, and 6 in the [Second
R]equest also contained personal email addresses, cell phone
numbers, and personal telephone numbers.
(Footnote continued on next page…)
8
Bowman, its Managed Care Operations Chief and Director of its Division of
Monitoring and Compliance;7 and Sallie Rodgers, its Deputy Chief Counsel for the
a. Under the RTKL, personal identification information is
exempt from disclosure. 65 P.S. §67.708(b)(6).
b. Furthermore, third parties have a [c]onstitutional right to
privacy and reputation. Personal information is exempt
from disclosure pursuant to a [c]onstitutional right of
privacy.
***
33. Some of the documents responsive to the [Items] in the request
contained application information. My understanding of [S]ection
708(b)(26)[] is that, as of this date, none of the applications that
were submitted in response to [the RFA] are “public records.”
Therefore, none of the documents that contain any part of the
applications are “public records.”
OOR Docket No. 2020-2750 Exhibit 6 at 24-25 (citations omitted).
7
Bowman’s affidavit states the following, in pertinent part:
8. Readiness [r]eview is the process by with [the Office of Medical
Assistance Programs (OMAP)] determines that MCOs that were
determined successful applicants through the procurement process
comply with all the elements of the HealthChoices Physical Health
standard MCO Agreement in both an operational capacity and
Management Information Systems (MIS).
***
11. Since formal protests were filed related to the RFA[,] OMAP
did not commence with the [r]eadiness [r]eview process.
12. Some of the responsive records contain internal discussions
between OMAP staff about proposed [DHS] actions.
(Footnote continued on next page…)
9
Office of General Counsel.8 That same day, United provided a supplemental
statement asserting that DHS provided another batch of records on January 13, 2021,
13. These discussions occurred before a final course of action was
decided.
14. These documents and communications are between internal
DHS staff, including legal counsel, occurring before a specific
action, deliberative about that action.
15. Therefore, it is my understanding that the RTKL’s predecisional
deliberation exemption protects these documents and
communications from disclosure. 65 P.S. §67.708(b)(10)(i)(A).
16. Some correspondence responsive to [Item] 2 also contains
communications with DHS counsel preparing for litigation.
17. The communications contain the thoughts and strategy of DHS
counsel in representing OMAP in bid protest litigation.
18. The documents responsive to [Item] 2 in the [Second R]equest
also contained personal email addresses, cell phone numbers, and
personal telephone numbers.
a. Under the RTKL, personal identification information is
exempt from disclosure. 65 P.S. §67.708(b)(6).
b. Furthermore, third parties have a [c]onstitutional right to
privacy and reputation. Personal information is exempt
from disclosure pursuant to a [c]onstitutional right.
OOR Docket No. 2020-2750 Exhibit 6 at 16-17.
8
Rodgers’ affidavit states the following, in pertinent part:
1. I am an attorney and work for the Office of General Counsel
[(OGC)], within [DHS]. Lara Antonuk [(Antonuk)] is an attorney
and works for OGC, within [DHS].
(Footnote continued on next page…)
10
2. I became involved in advising [DHS] staff pertaining to [the
RFA], including but not limited to, its issuance, selections for
negotiations, debriefings and ensuing protests. At various times,
[]Antonuk, has been involved with advising [DHS] staff pertaining
to [the RFA] including but not limited to its issuance, selections for
negotiations, debriefings and ensuing protests.
3. I was notified of [United’s Second Request] that included two
[items] requesting documents or communications pertaining to the
following:
• [Item] 2: Any documents or communications related to
the readiness[]review process described in the [RFA]
created or revised since July 2, 2020; and
• [Item] 4: Any documents or communications, both
internal and external, related to debriefing requests by any
RFA[] applicant.
4. I interpreted these two [items] to include attorney-client
correspondence and attorney written work, which is protected from
disclosure pursuant to the attorney-client privilege and attorney
work-product doctrine. See 65 P.S. §67.102 (definition of
“privilege”).
5. My email correspondence and work products are encompassed
by this request. Email correspondence and work products by
[]Antonuk are also encompassed by this request.
***
10. [DHS] staff routinely interact with OGC attorneys. The mutual
understanding of [DHS] staff and the OGC attorneys is that legal
advice provided by the attorneys to the staff is confidential and
subject to the attorney-client privilege.
11. There are records encompassed by [United’s Second Request]
that were sent by [DHS] staff to an OGC attorney, and those sent by
an OGC attorney, and I can say without any doubt that[]
(Footnote continued on next page…)
11
and argued that its objections to the second batch of records that DHS provided
should be included in the appeal.9
On February 12, 2021, OOR issued a Final Determination disposing of
United’s appeal of DHS’s response to its Second Request. Regarding DHS’s
redaction of information from Items 1, 4, and 6 based on the Section 708(b)(26)
exemption, OOR stated:
a. None of the messages was sent for the purpose of
committing a crime.
b. None of the messages was sent for the purposes of
committing a tort.
c. The messages contain requests from [DHS] staff to OGC
counsel to obtain legal advice, and from OGC counsel to
[DHS] staff providing legal advice and work product,
preparing for litigation pertaining to the procurement
process, debriefings and bid protests, and assisting in the
preparation of bid protest responses.
12. None of these communications, to or from an OGC attorney, set
forth a waiver of the attorney-client privilege.
13. Records responsive to the above requests also contain attorney-
work product.
a. The records were authored by an attorney in the course of
his or her professional duties, sent to another attorney or
[DHS] staff, and contain the written work, the mental
impressions, theories, and strategies of an attorney.
OOR Docket No. 2020-2750 Exhibit 6 at 19-20.
9
Ultimately, OOR denied United’s request, explaining that “in the appeal, [United]
indicates that [it] is aware of a rolling production schedule, where [DHS] would provide the records
in separate batches,” and that, “[t]herefore, this appeal is limited to the records that [United] could
review at the time of the appeal, for the purpose of challenging the redactions.” OOR Docket No.
2020-2750 Exhibit 12 at 5.
12
Here, [DHS] provided records responsive to Items
1, 4, and 6, and made redactions to prevent disclosure of
information related to proposal information and evaluation
committee records. The records sought are not the entire
applications themselves, but communications, which
include documents that contain evaluation committee
member notes, and records that would disclose
information related to an applicant’s references, which are
part of the application process. Further, as asserted by
several of the direct interest participants, the [Second]
Request seeks records that contain the “[]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. . . .” See 65
P.S. §67.708(b)(26)[.] Based on the affirmation of []Kern,
[DHS] has proven that it properly redacted records
responsive to Items 1, 4, and 6 as they would disclose
information associated with [the RFA], which has not been
awarded.
OOR Docket No. 2020-2750 Exhibit 12 at 11-12 (citations omitted).
Regarding DHS’s redaction of information from Items 2 and 4 based
on the Section 708(b)(10)(i)(A) predecisional deliberations exemption, OOR stated:
Here, the [Second] Request, in Items 2 and 4, seeks
records related to the “readiness[]review” process and
debriefing documents related to [the RFA]. [DHS],
through the attestation of []Bowman regarding Item 2 and
[]Kern regarding Item 4, state that responsive records were
redacted to prevent the disclosure of internal discussions
related to deliberations that took place prior to taking an
action. [DHS] specifically states that Item 2 contains
redactions that were made to prevent disclosure of
communications preparing for litigation and between
[DHS] staff that occurred prior to the readiness[]review
process and are deliberative in nature as they discuss
proposed [DHS] actions. Item 4 redactions were made
because the requested debriefing records contained
internal [DHS] communications occurring prior to the
sought debriefing, reflecting the deliberations of [DHS]
staff.
13
Therefore, based on the evidence provided, [DHS]
has proven that a portion of email records were properly
redacted as they are related to internal, predecisional
deliberations and are exempt from disclosure. See 65 P.S.
§67.708(b)(10)(i)(A).
OOR Docket No. 2020-2750 Exhibit 12 at 14.
Regarding DHS’s redaction of information from Items 1, 2, 4, and 6
based on the Section 708(b)(6) personal identification information exemption, OOR
stated:
Here, []Kern attests that redactions were made to
records responsive to Items 1, 4, and 6 where there was
personal identification information, such as email
addresses, cell phone numbers and personal telephone
numbers. Additionally, []Bowman attests that redactions
were made within records responsive to Item 2 for
personal identification information, such as email
addresses, cell phone numbers and personal telephone
numbers.
Therefore, based on the evidence provided, [DHS]
properly redacted personal identification information from
the records.
OOR Docket No. 2020-2750 Exhibit 12 at 15.
Regarding DHS’s redaction of information based on the Section 102
attorney-client privilege and attorney work-product doctrine, citing Rodgers’
affidavit, OOR stated:
Here, [DHS] has responsive records in its
possession that were either sent or received as part of an
agreement where [DHS] is a client for the attorneys who
provided legal advice. The communications that were
redacted are between [DHS] and its attorneys regarding
legal advice, opinions of law, legal services or advice in a
legal matter and the privilege has not been waived by
either party.
14
Additionally, [DHS] has proved that the records are
exempt as attorney work[]product and properly redacted
where they contained mental impressions, theories and/or
strategies of an attorney that were sent in the course of
professional duties.
[DHS] has provided sufficient evidence to prove
that the redacted records are protected by the attorney-
client and attorney work-product doctrines.
OOR Docket No. 2020-2750 Exhibit 12 at 18. Accordingly, OOR’s Appeals Officer
issued an order denying United’s appeal of DHS’s response to United’s Second
Request. Id. at 18-19. United then filed the instant appeal10 of OOR’s Final
Determination.
III.
United’s sole claim in this appeal is that OOR’s Final Determination
should be reversed because “United appealed DHS’s decision to withhold and redact
records on the grounds that DHS did not adequately explain its withholdings and
redactions, including its failure to catalogue each redaction and withheld document”
and “OOR failed to address this issue.” United’s Brief of Petitioner at 4.11 However,
as this Court has explained:
10
“In an appeal under the RTKL from a final determination of [] OOR, the review exercised
by this Court is plenary with respect to both questions of fact and law. This Court reviews []
OOR’s orders independently and may substitute its own findings of fact for those of [] OOR.”
Payne v. Pennsylvania Department of Health, 240 A.3d 221, 225 n.6 (Pa. Cmwlth. 2020) (citation
omitted).
11
Pa. R.A.P. 2111(a)(4) provides that “[t]he brief of the appellant . . . shall consist of the
following matters, separately and distinctly entitled and in the following order: . . . Statement of
the questions involved.” In turn, Pa. R.A.P. 2116(a) states, in relevant part:
The statement of the questions involved must state concisely the
issues to be resolved, expressed in the terms and circumstances of
(Footnote continued on next page…)
15
Under the RTKL, 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)[.] A
preponderance of the evidence is a finding “that the
existence of a contested fact is more probable than its
nonexistence.”
An agency may present sufficient evidence by the
submission of affidavits.
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.
However, conclusory affidavits, standing alone, will not
satisfy an agency’s burden of proof under the RTKL.
Moreover, the affidavit must be specific enough to permit
OOR or a reviewing court to ascertain whether the claimed
exemption applies to the records.
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.
Such a log “typically lists the date, record type, author,
the case but without unnecessary detail. The statement will be
deemed to include every subsidiary question fairly comprised
therein. No question will be considered unless it is stated in the
statement of questions involved or is fairly suggested thereby.
Accordingly, to the extent that United raises issues in its appellate brief that are not “fairly
suggested” by the quoted Statement of Questions Involved, they are waived for purposes of appeal.
See, e.g., Mooney v. Greater New Castle Development Corp., 510 A.2d 344, 348 n.4 (Pa. 1986)
(“The Superior Court refused to decide this question because it was not set forth in the statement
of questions involved as required by Pa. R.A.P. 2116; and, therefore, it was not properly before
that court. For this reason, we will not consider the question.”).
16
recipients, and a description of the withheld record. . . .”
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.” “An index, even
one containing minimal description, offers a tool for a
fact-finder reviewing corresponding records.”
UnitedHealthcare of Pennsylvania, Inc. v. Pennsylvania Department of Human
Services, 187 A.3d 1046, 1059 (Pa. Cmwlth. 2018) (citations and footnote omitted).
In fact, this Court has observed:
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. However, where an agency sufficiently
explains the basis for nondisclosure through an
affidavit, a log or in camera review may not be
necessary.
Id. at 1060 (citations omitted and emphasis added).
Indeed, in a similar circumstance, this Court noted:
While a claim of attorney-client privilege can be
denied if the party asserting it does not provide a privilege
log or explain its claim in any other way, a privilege log
was not necessary in this case. First, the [school d]istrict
set forth a description of the emails it was withholding in
the affidavit of its Open Records Officer that it attached to
its petition for review filed with the trial court. Second,
the [school d]istrict stated that it was withholding all 19
pages of the emails based on an exception in the RTKL
and it specifically notified [the r]equester that the
documents were exempt from disclosure pursuant to
attorney-client privilege. Therefore, the trial court did not
err by not requiring the [school d]istrict to provide a
privilege log.
Chambersburg Area School District v. Dorsey, 97 A.3d 1281, 1289 (Pa. Cmwlth.
2014) (citation omitted and emphasis in original).
17
Likewise, as extensively and exhaustively outlined above, the affidavits
that DHS submitted in support of the redactions and nondisclosures contained the
requisite specificity and were not conclusory, thereby distinguishing this case from
those relied upon by United in its brief. Moreover, the affidavits permitted OOR,
and permit this Court, to conduct the requisite review of DHS’s response to United’s
Second Request. See, e.g., UnitedHealthcare, 187 A.3d at 1059 (“Absent evidence
of bad faith, the veracity of an agency’s submissions explaining reasons for
nondisclosure should not be questioned.”). As a result, OOR did not err or abuse its
discretion in failing to require DHS to provide a privilege or exemption log or in
failing to conduct in camera review of the requested records.
Thus, United’s claim that DHS did not adequately explain its
withholdings and redactions and failed to catalogue each redaction and withheld
document is patently without merit. Furthermore, OOR’s purported failure to
address this issue is not a basis upon which its Final Determination will be reversed.12
Accordingly, OOR’s Final Determination is affirmed.
MICHAEL H. WOJCIK, Judge
Judge Wallace did not participate in the decision of this case.
12
See, e.g., Garner v. Pennsylvania Human Relations Commission, 16 A.3d 1189, 1200
(Pa. Cmwlth. 2011) (“[R]eversible error requires the determination ‘must not only be erroneous,
but also harmful or prejudicial to the complaining party.’ D.Z. v. Bethlehem Area School District,
2 A.3d 712, 726 (Pa. Cmwlth. 2010). ‘[A]n order of an administrative agency will not be disturbed
for harmless error.’ Id. at 725-26.”); Sturpe v. Unemployment Compensation Board of Review,
823 A.2d 239, 242 (Pa. Cmwlth. 2003) (holding that errors contained in the Board’s order as being
“harmless” where they were found to “have no effect on this outcome”); see also Sloan v. Workers’
Compensation Appeal Board (Children’s Hospital of Philadelphia), 124 A.3d 778, 786 n.8 (Pa.
Cmwlth. 2015) (“This Court may affirm on grounds other than those relied on below where other
grounds for affirmance exist.”) (citations omitted).
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
UnitedHealthcare of Pennsylvania, Inc., :
:
Petitioner :
:
v. : No. 245 C.D. 2021
:
Department of Human Services :
(Office of Open Records), :
:
Respondent :
ORDER
AND NOW, this 15th day of December, 2022, the Final Determination
of the Office of Open Records, dated February 12, 2021, at Docket No. AP 2020-
2750, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge