                            [J-29A-C-2015]
               IN THE SUPREME COURT OF PENNSYLVANIA
                          EASTERN DISTRICT

             SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.

DENTAL BENEFIT PROVIDERS, INC.     :   No. 48 EAP 2014
AND UNITEDHEALTHCARE OF            :
PENNSYLVANIA, INC. D/B/A           :   Appeal from the Order of the
UNITEDHEALTHCARE COMMUNITY         :   Commonwealth Court entered 2/19/14
PLAN AND HEALTHAMERICA             :   at No. 945 CD 2013 reversing the
PENNSYLVANIA, INC., D/B/A          :   determination entered on 5/7/13 of the
COVENTRYCARES,                     :   Office of Open Records at No. AP2012-
                                   :   2017
          Appellees                :
                                   :
          v.                       :   ARGUED: May 5, 2015
                                   :
JAMES EISEMAN, JR., AND THE PUBLIC :
INTEREST LAW CENTER OF             :
PHILADELPHIA,                      :
                                   :
          Appellants               :
                                   :
AETNA BETTER HEALTH INC., HEALTH :     No. 49 EAP 2014
PARTNERS OF PHILADELPHIA, INC.,    :
KEYSTONE MERCY HEALTH PLAN,        :   Appeal from the Order of the
AND DENTAQUEST, LLC,               :   Commonwealth Court entered 2/19/14
                                   :   at No. 957 CD 2013 reversing the
          Appellees                :   determination entered on 5/7/13 of the
                                   :   Office of Open Records at No. AP2012-
          v.                       :   2017
                                   :
JAMES EISEMAN, JR., AND THE PUBLIC :
INTEREST LAW CENTER OF             :   ARGUED: May 5, 2015
PHILADELPHIA,                      :
                                   :
          Appellants               :
                                   :
                                   :
DEPARTMENT OF PUBLIC WELFARE,      :   No. 50 EAP 2014
                                   :
          Appellee                 :   Appeal from the Order of the
                                   :   Commonwealth Court entered 2/19/14
          v.                       :   at No. 958 CD 2013 reversing the
                                   :   determination entered on 5/7/13 of the
JAMES EISEMAN, JR., AND THE PUBLIC : Office of Open Records at No. AP2012-
INTEREST LAW CENTER OF             : 2017
PHILADELPHIA,                      :
                                   :
          Appellants               : ARGUED: May 5, 2015




                                       OPINION


MR. CHIEF JUSTICE SAYLOR                               DECIDED: October 27, 2015


      This is the second of companion sets of appeals in which we are asked to

evaluate the breadth of the public’s statutory right of access to discrete information

about the implementation of the Medical Assistance Program.

      The general background for these appeals is set forth in this Court’s opinion in

the related case, DPW v. Eiseman, ___ Pa. ___, ___ A.3d ___ (2015), and that context,

as well as the conventions utilized there, are incorporated here by reference. The

present appeals primarily concern rates of payments made by Subcontractors to

providers of dental health services to Medicaid enrollees in the HealthChoices

Southeastern Zone from July 1, 2008, through July 30, 2012 (the “Provider Rates”).

      The pertinent RTKL request lodged by the Public Interest Law Center of

Philadelphia (“Requester”) sought documents, including contracts, rate schedules, and

correspondence in DPW’s possession, custody, or control evidencing the Provider

Rates. Requester recognized, at least tacitly, that the Law is directed primarily to the

disclosure of records “of a Commonwealth agency,” 65 P.S. §67.102 (setting for the

definition for a “public record”), and that the statutory presumption that records are

public ones is directed to records “in the possession of a Commonwealth agency,” id.

§67.305(a). Requester thus contended that, even if the Department did not physically

maintain custody of the requested records (since the relevant agreements were

                                  [J-29A-C-2015] - 2
downstream contracts between Subcontractors and dental-health-services providers),

DPW should be deemed to maintain constructive possession of them.

        In support of this proposition, Requester highlighted a requirement contained

within the standard written contract between the Department and managed care

organizations designed to ensure DPW’s expedient access to information about

services ultimately provided using Medicaid funds.      Specifically, this ready-access

provision is framed as follows:

              all contracts or Subcontracts that cover the provision of
              medical services to the [MCOs] Members must include . . .
              [a] requirement that ensures that the Department has ready
              access to any and all documents and records of transactions
              pertaining to the provision of services to Recipients.
HealthChoices Physical Health Agreement at 163 (version effective July 1, 2010).

        Alternatively -- and to the degree that responsive information was not in DPW’s

possession, but rather, was contained in records of non-public entities -- Requester

invoked a provision of the Law which recasts certain third-party records bearing a

requisite connection with the government as public records “of [a Commonwealth]

agency.” 65 P.S. §67.506(d)(1). See generally SWB Yankees LLC v. Wintermantel,

615 Pa. 640, 665, 45 A.3d 1029, 1044 (2012). In this regard, the statute prescribes

that:
              [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).

        First, Requester noted that “implementing the Medicaid program is a

governmental function,” while positing that payments to providers -- and, hence, the

                                   [J-29A-C-2015] - 3
Provider Rates -- were an integral aspect of such administration.          Letter Brief for

Requester, Eiseman v. DPW, Dkt. No. AP 2012-2017 (Pa. OOR), at 11.                   Next,

Requester set out to address Section 506(d)(1)’s directed focus upon records “in the

possession of a party with whom the agency has contracted.” 65 P.S. §67.506(d)(1)

(emphasis added).       Given that the Department simply had not contracted with

Subcontractors or dental-health-services professionals within Subcontractors’ provider

networks, Requester advanced the following policy-oriented rationale:

               [I]f MCOs could shield their expenditures of public funds
               from public scrutiny under the Right-to-Know Law simply by
               delegating some or all of their functions to subcontractors, it
               would be trivial for any entity contracting with a public
               agency to do so. Surely, the Right-to-Know Law and the
               meaning of “agency possession” therein may not be read so
               narrowly and must be read to encompass any subcontractor
               as well as contractor to a government agency.
Letter Brief for Requester, Eiseman v. DPW, Dkt. No. AP-2012-2017, at 11-12.

         DPW denied the request, citing, inter alia, the RTKL exception permitting the

withholding of a “record that constitutes or reveals a trade secret or confidential

proprietary information,” 65 P.S. §67.708(b)(11), along with the Pennsylvania Uniform

Trade Secrets Act.1

         Requesters lodged an appeal in the OOR, and the MCOs and Subcontractors

obtained leave to appear as direct-interest participants and submitted position

statements accompanied by supportive materials.2 DBP, et al., succinctly summarized

the relevant argument as follows:

1
    Act of Feb. 19, 2004, P.L. 143, No. 14 (as amended, 12 Pa.C.S. §§5301-5308).

2
  The third parties in interest have appeared throughout in two groups: the first
comprised of Dental Benefits Providers, Inc., United Healthcare of Pennsylvania, d/b/a
United Healthcare Community Plan, and HealthAmerica Pennsylvania, Inc., d/b/a
(Lcontinued)
                                    [J-29A-C-2015] - 4
              Under [Section 506(d)(1)], agency “possession” is satisfied
              respecting materials that are actually held by third parties
              only where: (1) the materials are in the hands of a third party
              with whom the agency has contracted, and (2) the materials
              pertain to a governmental function that the third party has
              contracted to carry out. . . . DPW[, however,] has contracted
              with the MCOs to carry out the HealthChoices program, not
              the dental subcontractors. DPW has no direct contractual
              relationship with the dental subcontractors. Accordingly, the
              first essential element is missing such that agency
              “possession” is not satisfied here. As such, the OOR cannot
              compel disclosure of any materials in the hands of the dental
              subcontractors.
Letter of DBP, et al., dated Jan. 14, 2013, in Eiseman v. DPW, Dkt. No. AP 2012-2017,

at 8 (emphasis in original); accord Letter of Aetna, et al., dated January 14, 2013, in

Eiseman, No. AP 2012-2017, at 9-10.

       Based on these submissions, the OOR subsequently issued a final determination

granting the request for records in full. Initially, the appeals officer highlighted the public

policy underlying the RTKL.       Eiseman v. DPW, Dkt. No. AP 2012-2017, 2013 WL

1950593, at *2 (Pa. OOR May 7, 2013) (explaining that the Law is “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.”

(quoting Bowling v. OOR, 990 A.2d 813, 824 (Pa. Cmwlth. 2010), aff’d, 621 Pa. 133, 75

A.3d 453 (2013))). Furthermore, he explained, the RTKL places the burden of proof

upon a public body to demonstrate exemptions pertaining to public records. See 65

P.S. §67.708(a).



(continuedL)
CoventryCares (collectively, DBP, et al.); the second group has entailed Aetna Better
Health Inc., Health Partners of Philadelphia, Inc., and Vista Health Plan, Inc., through
Keystone Mercy Health Plan, and DentaQuest, LLC (collectively, “Aetna, et al.”).


                                     [J-29A-C-2015] - 5
        The appeals officer proceeded to discuss Section 506(d)(1) of the RTKL in a

subsection of his opinion encaptioned: “The Department is required to obtain records in

the possession of the dental subcontractors related to the payment rates paid to

dentists.”   Eiseman, Dkt. No. AP 2012-2017, 2013 WL 1950593, at *4. In this regard,

the appeals officer pointed to the ready-access provision of the standard agreement

between DPW and managed care organizations, apparently equating (without further

explanation) the requirement of ready access with a mandate to affirmatively obtain

records. See id. at 5 (“The fact that the MCOs would . . . hire subcontractors is clearly

contemplated by the agreements between the Department and the MCOs, wherein the

Department ‘has ready access to any and all documents and records of transactions

pertaining to the provision of services to Recipients,’ including those records in the

possession of the dental subcontractors.” (quoting HealthChoices Physical Health

Agreement at 163)). The analysis by the appeals officer then segued into a crediting of

the policy-oriented rationale advanced by Requester:

              The OOR finds that Section 506(d) is applicable to records in
              the possession of the dental subcontractors. While the
              Department does not contract directly with the dental
              subcontractors, the dental subcontractors contract with the
              MCOs to perform services for the Department. Because the
              records sought directly relate to a governmental function
              being performed by the dental subcontractors, these records
              should be subject to public access. The OOR finds that any
              other interpretation would frustrate the intent of Section
              506(d) by making records showing how public monies are
              spent unavailable to the public even though they directly
              relate to a governmental function and a contract with a
              governmental agency.
Id.3

3
  A substantial portion of the balance of the appeals officer’s opinion was dedicated to
discussion of the Law’s exception for trade secrets, which served as a pillar of DPW’s
(Lcontinued)
                                   [J-29A-C-2015] - 6
      A divided, en banc panel of the Commonwealth Court reversed in a published

opinion. See Dental Benefit Providers, Inc. v. Eiseman, 86 A.3d 932 (Pa. Cmwlth.

2014). Referencing the statutory presumption of openness as to records in an agency’s

possession, see 65 P.S. §67.305(a), the Commonwealth Court majority initially

considered whether the requested records were within DPW’s possession, custody, or

control, such that the presumption might apply in the first instance. See Eiseman, 86

A.3d at 936.4 In this regard, the majority reverted to the definition of “records,” for

purposes of the Law, which encompasses information that documents a transaction “of

an agency” which is “received or retained” in connection with a transaction, business, or

activity of the agency. Id. at 936-37 (quoting 65 P.S. §67.102).

      The Commonwealth Court majority recognized that, for documents to be “of” a

Commonwealth agency, they need not necessarily originate with or be created by the

agency.   See id. at 937.     Nevertheless, it found that the Department lacks any

possession whatsoever of the Provider Rates, a proposition which seems to be

otherwise undisputed in this appeal (at least upon any affirmative production of

evidence). See id.

      Further, the majority acknowledged that the intermediate court previously had

applied the concept of constructive possession in the RTKL context. See id. at 938


(continuedL)
initial basis for denying the records request. The Commonwealth Court, however, did
not address this consideration, and based upon our analysis infra, this aspect is also
immaterial to our present decision.

4
 The MCOs and Subcontractors appear to dispute that the term “possession,” as it
appears in Section 305(a) of the Law, also encompasses custody and control. Accord
Office of Budget v. OOR, 11 A.3d 618, 622 (Pa. Cmwlth. 2011) (“Had the Legislature
wanted to create the presumption that records in an agency’s custody and control, but
not in its possession, were public records, it would have included those terms in Section
305.”).


                                   [J-29A-C-2015] - 7
(“We recognize constructive possession under Section 901 as a means of access so

agencies cannot frustrate the purposes of the RTKL by placing their records in the

hands of third parties to avoid disclosure.” (citing, inter alia, Office of the Budget, 11

A.3d at 622)). The majority nonetheless differed with the position of Requester and the

OOR that the ready-access provision of the standard contract between DPW and

managed care organizations supported a finding of constructive possession in the

present circumstances. Rather, the majority regarded such provision as reflecting only

“the mere availability of the records to an agency upon request.” Id. (“That DPW has

the contractual right and ability to request records from a private contractor does not

convert private contractor records into records ‘of’ DPW.”).5

5
  The majority also highlighted that the definition of “Subcontract” in the standard
agreement between DPW and managed care organizations exempts “Provider
Agreements,” such that these “are not considered Subcontracts for the purpose of this
Agreement and, unless otherwise specified . . ., are not subject to the provisions
governing Subcontracts.”      HealthChoices Physical Health Agreement at 29-30
(definition of “Subcontract”). The majority reasoned that such “contract language
supports DPW’s disclaimer of possession and access to Provider Rates.” Eiseman, 86
A.3d at 938.

The majority, however, failed to appreciate that the noted advance-written-approval and
ready-access provisions of the standard agreement are couched in materially different
terms – while the advance-written-approval term does indeed pertain to “Subcontracts,”
see HealthChoices Physical Health Agreement at 87, the ready-access term pertains
more broadly to “contracts or Subcontracts that cover the provision of medical services
to the [MCO’s] Members,” id. at 163. See generally Brief for Requester at 18 (“The
Ready Access requirement applies to ‘all contracts or Subcontracts,’ . . . but the
Commonwealth Court’s analysis elided the crucial words ‘contracts or.’” (emphasis
adjusted)).

Parenthetically, Requester develops that the Commonwealth Court majority also failed
to apprehend the standard contract’s definition of “Provider Agreement,” which simply
does not encompass remote agreements between Subcontractors and dental-health-
services providers. See Brief for Requester at 20. Moreover, Requester observes,
were these remote agreements actually “Provider Agreements” under the standard
(Lcontinued)
                                   [J-29A-C-2015] - 8
      In conjunction with this analysis, the Commonwealth Court majority referenced

Section 910 of the RTKL, which tasks an agency receiving a written request for access

to a record with “mak[ing] a good faith effort to determine if the record requested is a

public record . . . and whether the agency has possession, custody or control[.]” 65 P.S.

§67.901. Apparently synthesizing this provision with the Law’s definition of a “record,”

see id. §67.102 (defining such term, in relevant part, as information which “documents a

transaction or activity of an agency and that is created, received or retained pursuant to

the law or in connection with [such] a transaction, business or activity”), the majority

discerned that “[t]he litmus test under Section 901 remains whether the records

document a transaction of the agency to which the request was directed, not whether

they document a transaction of a private contractor.” Eiseman, 86 A.3d at 938.

      Additionally, harkening back to the MCOs’ and the Subcontractors’ initial position

statements before the OOR, the Commonwealth Court majority reasoned:

             [T]he Provider Rates are not “records” of DPW as that term
             is defined in the RTKL . . .. There is no evidence DPW
             sought to circumvent the RTKL by placing records of its
             activities into the hands of a third party. Rather, the Provider
             Rates are negotiated between Subcontractors and providers,
             and do not involve DPW.              They are not in DPW’s
             possession. Also, there is no indication that they were
             created or received by DPW, or that they evidence any
             transaction of DPW. At most, the Provider Rates evince a
             transaction of Subcontractors of the MCOs, with which DPW
             has no contractual relationship.




(continuedL)
contract, they would be subject to a discrete provision of the standard contract –
abjectly overlooked by the Commonwealth Court majority – explicitly requiring advance
written approval by DPW of Provider Agreements. See HealthChoices Physical Health
Agreement at 27 (definition of “Provider Agreement”), 119.


                                   [J-29A-C-2015] - 9
Id. at 939 (footnote omitted).6

       The Commonwealth Court majority proceeded to consider Section 506(d)(1)’s

expanded concept of “public records” extending to certain records of non-public

individuals and entities. From the outset, it agreed with the MCOs and Subcontractors

that one of the statute’s core elements – namely, the requirement for there to be a

contractual relationship between a government agency and the third party whose

records are in question, see 65 P.S. §67.506(d)(1) – simply was not met. The majority

explained that the intermediate court had enforced, and would enforce, such

requirement on its terms. See Eiseman, 86 A.3d at 939-40 (citing Honaman v. Lower

Merion Twp., 13 A.3d 1014, 1022 (Pa. Cmwlth. 2011)).7

6
  To the extent that the Commonwealth Court’s previous decision in Lukes v. DPW, 976
A.2d 609 (Pa. Cmwlth. 2009), supported the application of a policy-oriented rationale
focused on openness, the majority declined to extend this decision, which arose under
the predecessor open-records regime, into the context of the RTKL. See Eiseman, 86
A.3d at 941-42.

We have touched upon the Lukes decision further in the companion appeals. See
Eiseman, ___ Pa. at ___, ___ A.3d at ___.

7
  Although the above reasoning would seem dispositive, the intermediate court majority
did not conclude its analysis at this juncture. Rather, it proceeded to consider whether
Subcontractor records should be made available “through the MCOs’ contractual
relationship with DPW.” Id. at 940. The majority, however, did not anchor this line of
inquiry to any of the terms of Section 506(d)(1), other than that it proceeded to consider
whether there was a direct relationship between a governmental function (here, the
administration of the HealthChoices Program), and the Provider Rates. See id. at 940-
41. Ultimately, the majority found no such direct relationship on these terms:

            There is no question that the quality of the dental services
            rendered by providers directly relates to the performance of
            the government function formalized in the DPW/MCO
            contracts. The same may be true as to the availability of the
            services and the manner in which the services are delivered.
            However, the cost of obtaining those services . . . does not
(Lcontinued)
                                  [J-29A-C-2015] - 10
       Judge McCullough authored the dissenting opinion, concluding, inter alia, that

the Subcontractors’ agreements with dental-health-services providers should be

deemed to be in DPW’s possession. See Eiseman, 86 A.3d at 943. Construing the

Law very liberally, and reasoning that the MCOs contracted with the Subcontractors as

DPW’s agents, she took the position that “the Subcontractors have directly contracted

with DPW as principal.”      See id. at 945 (emphasis added).           Accordingly, Judge

McCullough found that Section 506(d)(1)’s contractual-relationship element was

satisfied.8

(continuedL)
            directly relate to the performance of the government
            function.
Id. at 940.

While expressing substantial misgivings with such reasoning and conclusion pertaining
to the asserted lack of a direct relationship, cf. infra note 8, we decline to consider this
line of inquiry further. Instead, we merely observe that Section 506(d)(1) requires both
possession by “a party with whom the agency has contracted to perform a
governmental function” and that the requested record “directly relates to the
governmental function.” 65 P.S. §67.506(d)(1). Thus, and as further discussed below,
the statute simply does not serve as a basis for disclosure where the contract element is
absent in the first instance. Accord Brief for DBP, et al., at 14 (“Because of the
conjunctive ‘and’ in the statute, if either of the two required elements is missing, then the
Law will not deem the agency to constructively possess records actually held by a non-
governmental third party.” (emphasis in original)).

8
  Judge McCullough also took issue with the majority’s determination that a direct
relationship between the Provider Rates and the administration of the HealthChoices
Program was lacking. She developed her point of view on this subject as follows:

            [T]he request for Provider Agreements and Provider Rates
            falls squarely within the terms of the Subcontractors’
            contractual duties and explicit governmental undertakings.
            Via sub-contractual arrangements, the Subcontractors
            assume DPW’s governmental obligation to implement
            Medicaid and ensure that dental care is available for
            Medicaid recipients. Pursuant to their governmental and
(Lcontinued)
                                    [J-29A-C-2015] - 11
       The present arguments closely align with the presentations before the OOR and

the Commonwealth Court. In substance, Requester and its amici hew most closely to a

policy-oriented position. See, e.g., Brief for Requester at 14 (“Under the RTKL, when

an agency channels taxpayer dollars through middlemen in the administration of a

public program, the contracts documenting that flow of public funds ‘directly relate’ to

the performance of a governmental function.”). In this regard, they invoke the policy of

liberal construction, see Levy v. Senate of Pa., 619 Pa. 586, 619, 65 A.3d 361, 381

(2013) (quoting Allegheny Cnty. Dep’t of Admin. Servs. v. A Second Chance, Inc., 13

A.3d 1025, 1034 (Pa. Cmwlth. 2011)), as well as the presumption that the General

Assembly “intends to favor the public interest as against any private interest,” 1 Pa.C.S.

§1922(5).

       Requester also maintains that disclosure is required per Section 506(d)(1). It

characterizes the prerequisite of a direct contract between a government agency and a

third-party in possession of salient records as a “cramped interpretation,” yielding

circumstances in which “any governmental contractor could shield from disclosure –

either deliberately or incidentally – otherwise publicly available records[.]”   Brief for

Requester at 27.

(continuedL)
            contractual duties, the Subcontractors are not only obligated
            to secure dental services through Provider Agreements, but
            are also required to negotiate Provider Rates with the dental
            providers. On these facts, I would conclude that the
            Provider Agreements and Provider Rates directly relate to
            the Subcontractors’ performance of a government function.
            These agreements and rates are indispensably necessary to
            effectuate Medicaid and represent the very thing the
            Subcontractors contractually agreed to do for and on behalf
            of DPW.

Id. at 945.


                                  [J-29A-C-2015] - 12
       Furthermore, Requester contends that the Commonwealth Court majority’s

“litmus test” for constructive possession “is without foundation and should be rejected as

substantially curbing access to documents pertaining to the conduct of public business.”

Brief for Requester at 22.       Citing Sapp Roofing Co. v. Sheet Metal Workers’

International Association, Local Union No. 12, 552 Pa. 105, 109, 713 A.2d 627, 629

(1998) (plurality) (determining that payroll records of a private roofing contractor in the

custody of a local agency were public records, because they evidenced a disbursement

by a governmental unit),9 Requester urges that the understanding of public records

within the possession, custody, or control of an agency cannot be so closely

constrained. See Brief for Requester at 22 (“Even though such records may be in

agencies’ possession precisely so the agencies can assess whether contractors are

complying with a law, this ‘litmus test’ will broadly exclude these records from public

review.”). Requester particularly stresses the “custody or control” aspect, analogizing

these terms to custody or control for purposes of civil discovery. See id. (citing Tribune-

Review Publ’g Co. v. Westmoreland Cnty. Hous. Auth., 574 Pa. 661, 672, 833 A.2d

112, 118 (2003) for the proposition that, in construing the terms “possession, custody or

control,” in the context of civil discovery, this Court had determined that “the courts of

this Commonwealth reject a narrow ‘physical possession’ test, focusing instead on

whether the subpoenaed party has a legal right to custody or control of the documents

in question.”)).

       According to Requester:




9
  Although Sapp Roofing was a plurality decision, three of the five Justices participating
in the decision agreed that the payroll records were public records for purposes of the
former open-records law. See Sapp Roofing, 552 Pa. at 109, 713 A.2d at 629; id. at
112, 713 A.2d at 630 (Zappala, J., concurring).


                                   [J-29A-C-2015] - 13
             [I]f DPW has not been exercising its “Ready Access” power
             to review contracts setting forth Provider Rates, that would
             represent a troubling abrogation of its responsibilities to
             ensure that Pennsylvania’s Medicaid program is effective
             and in compliance with federal and state law. Under the
             Medicaid Act, “a state must ensure that its state plan
             incorporates adequate reimbursement rates to enlist a
             sufficient number of dentists to assure that dental care is
             available to [Medical Assistance] recipients to the same
             extent and quality of care as dental care available to the
             general population in certain geographic areas.” Clark v.
             Richman, 339 F. Supp. 2d 631, 643 (M.D. Pa. 2004). The
             Ready Access requirement is a key tool for DPW to
             accomplish this objective. . . . If DPW has not been
             reviewing such records [encompassing the Provider Rates],
             it has failed to track the flow of billions of dollars in taxpayer
             funds that were expended for the benefit of the neediest
             Pennsylvanians.
Brief for Requester at 23-24.     Requester also argues that the implication, by the

Commonwealth Court majority, that a citizen requesting records should be required to

present evidence that an agency is “attempting to play some sort of shell game by

shifting these records to a non-governmental body,” Eiseman, 86 A.3d at 938 (quoting

Office of Budget, 11 A.3d at 621), improperly shifts the burden of proof to requesters

instead of agencies as required by the Law, see 65 P.S. §67.708(a)(1), and turns upon

an analysis which is entirely absent from the RTKL.

      On the other hand, a core proposition of the MCOs and Subcontractors is that

Section 506(d)(1) establishes the only appropriate test for access to third-party records

which are not in the possession, custody, or control of a Commonwealth agency, and

the Commonwealth Court’s determination that the element of a contractual relationship

between DPW and Subcontractors is lacking is eminently correct. See Brief for DBP, et

al., at 19 (asserting that Requester’s argument “is nothing more than a complaint about

how the General Assembly drafted section 506”). The MCOs and Subcontractors deny

that the standard agreement between the Department and MCOs permits DPW access

                                   [J-29A-C-2015] - 14
to “sensitive and proprietary contractual rates that are confidentially negotiated between

the subcontractors and the dental providers.” Brief for DBP, et al., at 17.10 The MCOs,

their subcontractors, and their amici also touch upon policy considerations in tension

with those developed by Requester. See, e.g., Brief for Amicus America’s Health Ins.

Plans at 4-5 (asserting that “[a]s in the private health insurance marketplace,

maintaining the confidentiality of negotiated price terms is critical to realizing the

benefits of a competitive Medicaid managed care market” and that “confidential rate

terms keep Medicaid costs down”); Brief for Amicus Pa. Coalition of Med. Assistance

Managed Care Orgs. at 3 (“A reversal of the Commonwealth Court’s decisions will

cause substantial and widespread harm to Pennsylvania’s current system of providing

dental care for Medicaid beneficiaries, decreasing quality of care and access to care

and increasing the total cost for taxpayers of the Commonwealth.”)

       DPW, for its part, merely adopts the MCOs’ and Subcontractors’ arguments.

       We deem the issues presented to be matters of statutory construction, over

which our review is plenary.      Upon consideration, we agree with the MCOs and

Subcontractors on the essential points that the Law channels access to third-party

records through Section 506(d)(1), and that such provision contemplates an actual

contract with a third party in possession of salient records.


10
   The MCOs and Subcontractors also endorse the Commonwealth Court’s position, in
other cases, that “[b]y its plain language, Section 901 describes the actions that an
agency is obligated to take when it receives a request for a record; it does not define
what records are subject to disclosure under the RTKL.” Brief for Aetna, et al. at 11
(citing Office of the Budget, 11 A.3d at 619-20). We agree. Notably, Section 901’s
discussion of “possession, custody or control” in no way supplants the initial
understanding that it is “public records” which are the subject of disclosure. See 65 P.S.
§67.901 (prescribing that when an agency receives a records request, it “shall make a
good faith effort to determine if the record requested is a public record . . . and whether
the agency has possession, custody or control” (emphasis added)).


                                   [J-29A-C-2015] - 15
       The Commonwealth Court’s decision expressly recognized this essential point,

see Eiseman, 86 A.3d at 939-40, and we will affirm its order upon such basis. It is only

because the intermediate court’s opinion took several turns with which we either

disagree or would consider more closely were it necessary to do so, see supra notes 5

and 7, that we are unable to credit the opinion fully.

        With regard to records in the possession of third parties, we differ with

suggestions from Requester’s camp that the General Assembly has provided for the

“maximum access to financial records and contractor records.” Brief of Amici Pa.

NewsMedia Ass’n & Pa. Freedom of Information Coalition at 6 (emphasis added).

Rather, as in SWB Yankees, albeit that the policy of liberal access is acknowledged,

this Court also appreciates that the General Assembly had tempered such policy with

explicit limiting terms delineated in the Law, “presumably on account of the burden,

expense, and other impositions attending wholesale disclosure” by non-public entities.

SWB Yankees, 615 Pa. at 662, 45 A.3d at 1042.

       Certainly, Requester and its amici have identified salient policy considerations

favoring public access to downstream Provider Rates.          Nevertheless, there are

countervailing factors, including the benefit of cost efficiencies associated with the

government’s accessing of complex private systems of administering health care.

Although given the importance of the discrete subject matter – encompassing the

essential provision of health care services as well as the immense associated expense

– particularized legislative consideration would seem to be in order relative to the

openness or secrecy of third-party records downstream from actual Commonwealth

agency contracts, we are left here only to apply the highly generalized principles

established under Section 506(d)(1).




                                    [J-29A-C-2015] - 16
      We appreciate Requester’s concern with the Commonwealth Court’s “litmus test”

for constructive possession under Section 901 of the Law. Nevertheless, Section 901

explicitly harkens back to the essential concept of a “public record,” 65 P.S. §67.901,

and the incorporated definition of a “record” does encompass the notion of a

“transaction or activity of an agency” to which the intermediate court majority has

rightfully afforded meaning, id. §67.102.      While in light of the policy of liberal

construction of the instant remedial statute these terms should be construed broadly, cf.

Sapp Roofing, 552 Pa. at 109, 713 A.2d at 629, they simply cannot be ignored, since, at

bottom, our present task is one of statutory construction, not independent judicial

policymaking.

      The order of the Commonwealth Court is affirmed, albeit on narrower grounds

than those developed in the intermediate court’s opinion.



      Messrs. Justice Eakin and Baer and Madame Justice Todd join the opinion.

      Mr. Justice Stevens files a dissenting opinion.




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