         [J-28A-2015, J-28B-2015 and J-28C-2015] [MO: Saylor, C.J.]
               IN THE SUPREME COURT OF PENNSYLVANIA
                            EASTERN DISTRICT


COMMONWEALTH OF PENNSYLVANIA, :          No. 45 EAP 2014
DEPARTMENT OF PUBLIC WELFARE, :
                                  :      Appeal from the Order of the
                Appellee          :      Commonwealth Court entered on
                                  :      02/19/2014 at No. 1935 CD 2012 affirming
                                  :      in part and reversing in part the
          v.                      :      determination entered on 09/17/2012 of the
                                  :      Office of Open Records at No.
                                  :      AP2011-1098.
JAMES EISEMAN, JR. AND THE PUBLIC :
INTEREST LAW CENTER OF            :      ARGUED: May 5, 2015
PHILADELPHIA,                     :
                                  :
                Appellants        :


AETNA BETTER HEALTH, INC., HEALTH :      No. 46 EAP 2014
PARTNERS OF PHILADELPHIA, INC.,    :
AND KEYSTONE MERCY HEALTH          :     Appeal from the Order of the
PLAN,                              :     Commonwealth Court entered 02/19/2014
                                   :     at No. 1949 CD 2012 affirming in part and
                Appellees          :     reversing in part the determination entered
                                   :     on 09/17/2012 of the Office of Open
                                   :     Records at No. AP2011-1098.
          v.                       :
                                   :     ARGUED: May 5, 2015
                                   :
JAMES EISEMAN, JR., AND THE PUBLIC :
INTEREST LAW CENTER OF             :
PHILADELPHIA,                      :
                                   :
                Appellants         :


UNITEDHEALTHCARE OF                  :   No. 47 EAP 2014
PENNSYLVANIA, INC. D/B/A             :
UNITEDHEALTHCARE COMMUNITY           :   Appeal from the Order of the
PLAN AND HEALTHAMERICA               :   Commonwealth Court entered 02/19/2014
PENNSYLVANIA INC. D/B/A              :   at No. 1950 CD 2012 affirming in part and
COVENTRYCARES,                       :   reversing in part the determination entered
                                     :   on 09/17/2012 of the Office of Open
                     Appellees    : Records at No. AP2011-1098.
                                  :
                                  : ARGUED: May 5, 2015
          v.                      :
                                  :
                                  :
JAMES EISEMAN, JR. AND THE PUBLIC :
INTEREST LAW CENTER OF            :
PHILADELPHIA,                     :
                                  :
                Appellants        :


                                 DISSENTING OPINION


MR. JUSTICE EAKIN                                        DECIDED: October 27, 2015
       I agree with the Commonwealth Court’s majority that documents containing MCO

Rates are not “financial records” within § 102 of the RTKL, 65 P.S. § 67.102. See Dep’t

of Public Welfare v. Eiseman, 85 A.3d 1117, 1127 (Pa. Cmwlth. 2014) (en banc)

(“Because MCO Rates are not disbursed ‘by an agency,’ [the] OOR erred in concluding

MCO Rates are ‘financial records.’”). MCO Rates are rates set by a private company,

not an agency. The private company disburses the funds — the agency does not.

While the entire scheme of payment immediately suggests bureaucratic confusion and

obfuscation, the plain language of the RTKL does not cover this situation — perhaps it

should, but as it currently exists, in my judgment it does not.

       I would remand the matter to the OOR to decide, in the first instance, whether the

MCO Rates are exempt from disclosure under § 708(b)(11). Contra id. (“Because we

conclude the MCO Rates are not ‘financial records,’ we next consider the RTKL

exceptions that OOR did not fully analyze based on its adherence to Lukes[ v. Dep’t of

Public Welfare, 976 A.2d 609 (Pa. Cmwlth. 2009)]. Typically, we would remand to [the]

OOR to serve as fact-finder.”). Thus, I respectfully dissent.




            [J-28A-2015, J-28B-2015 and J-28C-2015] [MO: Saylor, C.J.] - 2
