N. Anand v. Com. of PA, PA Ins. Dept.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Neil Anand, :

Petitioner :

:

v. : No. 318 M.D. 2023

:

Commonwealth of Pennsylvania, : Submitted: September 9, 2024

Pennsylvania Insurance Department, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE McCULLOUGH FILED: October 11, 2024

Neil Anand (Requester) petitions for review of the July 11, 2023 Final

Determination of the Office of Open Records (OOR), which denied his appeal from

the March 15, 2023 decision of the Pennsylvania Insurance Department (Department)

granting in part and denying in part his Right-to-Know Law1 (RTKL) request

(Request). Requester also seeks relief in our original jurisdiction in the form of a

petition for writ of mandamus and/or petition to enforce pursuant to Pennsylvania Rule

of Appellate Procedure (Pa.R.A.P.) 3761(b).

The Department has filed preliminary objections to the original

jurisdiction portion of Requester’s petition for review, arguing, among other things,

that it must be dismissed due to this Court’s lack of jurisdiction. The Department

further argues that the OOR’s Final Determination should be affirmed in total.

Upon review, we sustain the Department’s preliminary objections in part,

dismiss the original jurisdiction portion of the petition for review, and affirm the OOR.

1

Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.

I. BACKGROUND AND PROCEDURAL HISTORY

On March 28, 2023, Requester submitted the Request to the Department

seeking 24 categories of records relating to “Independence Blue Cross” and the

“Independence Company” or “Independence Companies”2 for the years 2009 through

2019. Specifically, the Request sought:

1. All documents of health insurance premiums, base prices

and rate adjustments that were reviewed and/or calculated by

[the] Department for individual and small businesses.

2. All documents of reviews or calculations for base rate or

price including but not limited to medical costs ([i.e.,] how

much and how often), operating costs ([i.e.,] salaries, rent,

and marketing), taxes, fees, and profits.

3. All documents of reviews or calculations for rate

adjustments including age, location, tobacco use, and family

size.

4. All documents of determinations when reviewing rates of

medical costs, non-medical costs, and operating costs where

the proposed rates were excessive, inadequate, or

discriminatory.

5. All documents of determinations when reviewing rates

which were not approved by [the Department].

6. All Independence Company documents pertaining to

failure to meet regulatory requirements, requiring rebates to

be issued on premiums paid or where premium differences

or miscalculations were paid back to insureds.

7. All documents of reviews or calculations of health

insurance premiums, base prices[,] and rate adjustments that

were reviewed and/or calculated by [the] Department

factoring: [(]1) [r]ecovery of payments; [(]2) [r]ecovered

[s]avings; [(]3) [c]laims [d]enied; [(]4) [c]laim [r]ecoveries;

2

The Request defined the “Independence Companies” to include “Independence Blue Cross,

Inc., Ameri[H]ealth HMO, Inc., Independence Blue Cross, LLC, Independence Health [G]roup, Inc.,

Independence Hospital Indemnity Plan, Inc., Keystone Health Plan East, Inc., QCC Insurance

Company[], and Ameri[H]ealth Caritas.” (Certified Record (C.R.), OOR Exhibit 1, p. 000072)

2

[(]5) [c]laim [o]ffsets; [(]6) [v]oluntary [r]estitution; [(]7)

[p]harmacy [a]udits; [and (]8) [c]ourt[-o]rdered

[r]estitution[.]

8. All Independence Company documents pertaining to any

request for [a] rate increase of 15% or more before raising

premiums in [ ] Pennsylvania.

9. All Independence Company documents pertaining to the

80/20 [r]ule where insurance companies are required to

spend at least 80% of the money they take in from premiums

on health care costs and quality improvement activities[,]

and the other 20% can go to administrative, overhead, and

marketing costs.

10. All Independence Company documents pertaining to

[m]edical [l]oss [r]atio.

11. All Independence Company documents pertaining to

reviews or calculations of health insurance premiums, base

prices[,] and rate adjustments for large groups (usually more

than 50 employees) where insurance companies are required

to spend at least 85% of premiums on care and quality

improvement.

12. All Independence Company documents pertaining to

reviews or calculations of health insurance premiums and

rate adjustments by [the] Center[s] for Medicare [and

Medicaid] Services [(CMS)] for location, age, tobacco use,

plan category, and whether the plan covers dependents.

13. All Independence Company documents pertaining to

differences in competition, state and local rules, and cost of

living with regard[] to rate submissions as well as

determinations of adequate competition for the

Independence Companies within [ ] Pennsylvania.

14. All Independence Company documents pertaining to

reviews or calculations of health insurance premiums for

[p]lan category: [b]ronze, [s]ilver, [g]old, [p]latinum, and

[c]atastrophic.

15. All documents pertaining to an [u]nreasonable [r]ate

[i]ncrease where [the] Department reviews a rate increase

that is subject to review and determines that[ (]1) the rate

3

increase is an unreasonable rate increase, [(]2) [] the increase

is an excessive rate increase, [(]3) [] there is an unjustified

rate increase, or [(]4) [there is] an unfairly discriminatory

rate increase.

16. All documents pertaining to an [u]nreasonable [r]ate

[i]ncrease where [the] Department determined that the rate

increase is an excessive rate increase or that the increase

causes the premium charged for the health insurance

coverage to be unreasonably high in relation to the benefits

provided under the coverage.

17. All documents where [the] Department determined that

the rate increase results in a projected medical loss ratio

below the [f]ederal standard in the applicable market to

which the rate increase applies, after accounting for any

adjustments allowable under [f]ederal law.

18. All documents where [the] Department determined that

one or more of the assumptions on which a rate increase by

an Independence Company is not supported or based on

substantial evidence.

19. All documents where [the] Department determined that

the choice of assumptions or combination of assumptions on

which the rate increase is based [] is unreasonable.

20. All documents where [the] Department determined that

the rate increase is an unjustified rate increase because an

Independence Company provided data or documentation to

[the] Department in connection with the increase that was

incomplete, inadequate or otherwise did not provide a basis

upon which the reasonableness of an increase may be

determined.

21. All documents where [the] Department determined that

the rate increase is an unfairly discriminatory rate increase if

the increase results in premium differences between insureds

within similar risk categories that[] (1) [a]re not permissible

under applicable state law; or (2) [i]n the absence of an

applicable state law, do not reasonably correspond to

differences in expected costs.

4

22. All documents where [the] Department reviewed,

determined or approved of[] ([1]) [t]he reasonableness of the

assumptions used by the Independence Company health

insurance issuer to develop the proposed rate increase and

the validity of the historical data underlying the assumptions;

([2]) [T]he Independence Company health insurance issuer’s

data related to past projections and actual experience; ([3])

[t]he Independence Company reasonableness of assumptions

used to estimate the rate impact of the reinsurance and risk

adjustment programs under [S]ections 1341 and 1343 of the

Affordable Care Act[3][, 42 U.S.C. §§ 18061, 18063]; [or]

([4]) [t]he Independence Company health insurance issuer's

data related to implementation and ongoing utilization of a

market-wide single risk pool, essential health benefits,

actuarial values and other market reform rules as required by

the Affordable Care Act.

23. All documents where [the] Department reviewed,

determined or approved that an Independence Company

calculated: ([1]) [t]he impact of medical trend changes by

major service categories; ([2]) [t]he impact of utilization

changes by major service categories; ([3]) [t]he impact of

cost-sharing changes by major service categories, including

actuarial values; ([4]) [t]he impact of benefit changes,

including essential health benefits and non-essential health

benefits; ([5]) [t]he impact of changes in enrollee risk profile

and pricing, including rating limitations for age and tobacco

use under [S]ection 2701 of the Public Health Service Act[,4

42 U.S.C. § 300gg]; ([6]) [t]he impact of any overestimate or

underestimate of medical trend for prior year periods related

to the rate increase; ([7]) [t]he impact of changes in reserve

needs; ([8]) [t]he impact of changes in administrative costs

related to programs that improve healthcare quality; ([9])

3

What is customarily referred to as the “Affordable Care Act” consists of two pieces of

legislation: the Patient Protection and Affordable Care Act of 2010, Pub. L. No. 111–148, 124 Stat.

119 (2010) (codified as amended in scattered titles of the United States Code (U.S.C.)), and the Health

Care and Education Reconciliation Act of 2010, Pub. L. No. 111–152, 124 Stat. 1029 (2010) (codified

as amended in scattered titles of the U.S.C.).

4

42 U.S.C. §§ 201-300kk, -300mm-64.

5

[t]he impact of changes in other administrative costs; ([10])

[t]he impact of changes in applicable taxes, licensing or

regulatory fees; ([11]) [m]edical loss ratio; ([12]) [t]he health

insurance issuer’s capital and surplus; ([13]) [t]he impacts of

geographic factors and variations; ([14]) [t]he impact of

changes within a single risk pool to all products or plans

within the risk pool; [and] ([15]) [t]he impact of reinsurance

and risk adjustment payments and charges under [S]ections

1341 and 1343 of the Affordable Care Act.

24. All documents where [the] Department reviewed,

determined or approved that the [e]ffective [r]ate [r]eview

[p]rogram for an Independence Company must provide: (1)

[f]or proposed rate increases subject to review, access from

its [website] to at least the information contained in [p]arts I,

II, and III of the [r]ate [f]iling [j]ustification that CMS makes

available on its [website] (or provide CMS’s web address for

such information), and have a mechanism for receiving

public comments on those proposed rate increases, no later

than the date specified in guidance by the [Insurance

Commissioner]; [and] (2) [b]eginning with rates filed for

coverage effective on or after January 1, 2016, for all final

rate increases (including those not subject to review), access

from its [website] to at least the information contained in

[p]arts I, II, and III of the [r]ate [f]iling [j]ustification (as

applicable) that CMS makes available on its [website] (or

provide CMS’s web address for such information), later than

the first day of the annual open enrollment period in the

individual market for the applicable calendar year.

(C.R., OOR Exhibit 1, pp. 000072-74.)

On March 15, 2023, the Department granted the Request in part, denied it

in part, and further advised that certain responsive documents did not exist (Response).

(Id., p. 000079.) First, the Department granted the Request, in part, for Items 1-4, 7-

14, 17, 23, and 24, and provided a link to the Department’s website where the

responsive, public documents could be reviewed. Id. The Department also denied the

Request, in part, for the same items, asserting that some of the responsive records were

6

exempt from disclosure because they evidenced the Department’s predecisional

deliberations, contained trade secret or confidential proprietary information, and/or

concerned the Department’s noncriminal investigations. Id. See Sections 708(b)(10),

708(b)(11), and 708(b)(17) of the RTKL, 65 P.S. § 67.708(b)(10), (b)(11), (b)(17).

Next, with regard to Item 6, the Department granted the Request, in part,

and provided another weblink where responsive documents could be reviewed. It also

denied the Request under Item 6, in part, asserting that some of the responsive

documents were exempt from disclosure because they, too, related to the Department’s

noncriminal investigations, 65 P.S. § 67.708(b)(17), and were confidential pursuant to

40 P.S. § 323.5(f).5 (C.R., OOR Ex. 1, p. 000080.) With regard to Items 5, 15, 16, and

18-22, the Department advised that it does not have responsive records in its

possession, custody, or control given the Department’s six-month records retention

policy for disapproval filings. Id.

Requester filed an appeal to the OOR on April 3, 2023, attached to which

was a 64-page position statement. (C.R., OOR Exhibit 1, p. 000002.) The Department

argued before the OOR that responsive records do not exist for Items 5, 15, 16, and 18-

22 and that the records requested in Items 1-4, 6-14, 17, 23, and 24 were exempt from

disclosure under the various RTKL exemptions identified in its Response. In support,

the Department submitted sworn attestations of (1) Lindsi Swartz (Swartz Attestation),

who is the Director of Life and Accident and Health Insurance in the Department’s

5

Section 905(f) of The Insurance Department Act of 1921 (Insurance Act), Act of May 17,

1921, P.L. 789, amended - added by the Act of December 18, 1992, P.L. 1496. Section 905(f)

provides that, with certain delineated exceptions, “all working papers, recorded information,

documents[,] and copies thereof produced by, obtained by or disclosed to the [D]epartment or any

other person in the course of an examination made under this article shall be given confidential

treatment and are not subject to subpoena and may not be made public by the [D]epartment . . . .” 40

P.S. § 323.5(f).

7

Office of Insurance Project Regulation, and (2) Dave Buono (Buono Attestation).

Buono is the Deputy Insurance Commissioner for the Office of Market Regulation,

which includes the Bureaus of Market Conduct, Enforcement, and Consumer Services.

Upon request by the OOR for further clarification, the Department submitted a

supplemental attestation of Swartz (Supplemental Swartz Attestation). Requester did

not submit any further timely statements or evidence to the OOR.6

The OOR denied Requester’s appeal in total, concluding that the

Department sufficiently established via its several attestations that (1) the records

responsive to Items 5, 15, 16, and 18-22 do not exist, (2) portions of the responsive

records under Items 1-4, 7-14, 17,7 23, and 24 are exempt from disclosure under the

predecisional deliberations exemption, and (3) the records responsive to Item 6 are

exempt under the noncriminal investigation exemption.

Requester filed a petition for review in this Court on July 18, 2023, in

which he invokes both our appellate and original jurisdiction. More specifically,

Requester seeks both review and “enforcement” of the OOR’s Final Determination and

refers to the original jurisdiction portion of his petition as both a “petition to enforce”

and an action in “mandamus.” See, e.g., Petition for Review, ¶¶ III(1), (3), (IV), (VII),

(VIII). Requester seeks both reversal of the OOR’s Final Determination and an order

6

Requester submitted untimely exhibits and a supplemental position statement on July 3,

2023.

7

Although the OOR does not include Item 17 in its discussion on pages 8 through 12 of the

Final Determination, it acknowledged that the Department argued that the records requested in Item

17 were not disclosable under the predecisional deliberations exemption. See Final Determination,

at 4-5. Accordingly, it is apparent that the OOR’s omission of Item 17 in its discussion was a

typographical error only, and we include it in our discussion where necessary.

8

or injunction directing the Department to disclose the withheld records. Id., ¶ XI.8

Because it is a dual jurisdiction matter, this Court docketed Requester’s petition for

review as one filed in our original jurisdiction.

The Department filed preliminary objections to the original jurisdiction

portion of the petition for review, contending that, because Requester seeks appellate

review of the OOR’s Final Determination, neither a petition to enforce pursuant to

Pa.R.A.P. 3761(b) nor a mandamus action is appropriate in this Court. The Department

further argues that the OOR was correct in its disposition of Requester’s appeal and,

accordingly, requests affirmance.

II. DISCUSSION9

A. The Department’s Preliminary Objections

We address first the Department’s preliminary objections. The

Department objects to the original jurisdiction portion of the petition for review on the

grounds that (1) this Court lacks jurisdiction over Requester’s mandamus claim

because a petition to enforce, and not an action in mandamus, is the appropriate vehicle

under Pa.R.A.P. 3761(b) to enforce a final determination of the OOR (first preliminary

objection); (2) Requester’s mandamus claim fails as a matter of law (second

preliminary objection); and (3) Requester’s petition to enforce fails as a matter of law

(third preliminary objection).

8

Requester also asks in passing that “the trial court conduct an evidentiary hearing on [his]

petition in accordance with the [F]inal [D]etermination, court fees, and civil penalties.” (Petition for

Review, ¶ XI.)

9

Requester lists in his brief seven questions for review, all of which are fairly subsumed under

the issues we identify and discuss infra. Both Requester’s petition for review and principal appellate

brief contain hundreds of paragraphs and subparagraphs that, at times, are repetitious, rambling, and

inconsistently numbered. We have attempted as far as possible to glean Requester’s arguments from

his filings.

9

Pennsylvania Rule of Appellate Procedure 3761 governs enforcement

proceedings in this Court. Subsection 3761(b) provides a mechanism for the

enforcement of final determinations of the OOR. It provides that, “[w]hen a party to a

proceeding before the [OOR] seeks to enforce a final determination regarding a record

requested from a Commonwealth Agency, Legislative Agency, or Judicial Agency, it

may initiate proceedings in the Commonwealth Court by filing a petition to enforce.”

Pa.R.A.P. 3761(b). The Note to Rule 3761(b) indicates that a petition to enforce is (1)

the lone mechanism for enforcing OOR final determinations regarding RTKL requests

to Commonwealth agencies, and (2) is to be filed in our appellate, rather than original,

jurisdiction. Pa.R.A.P. 3761, Note. It further explains:

Pa.R.A.P. 3761(b) provides the method for seeking

compliance with a final determination of the [OOR] in the

Commonwealth Court. This differs from proceeding in the

courts of common pleas, where the method to obtain judicial

review of alleged failure to comply with a final

determination of the [OOR] may be an action in mandamus

or other petition authorized by local rule. Use of this petition

is appropriate when the final determination was not

appealed. If an appeal was taken and the order affirmed by

the Commonwealth Court, enforcement is not of the final

determination of the [OOR], but rather of the order of the

Commonwealth Court.

Because the petition in Pa.R.A.P. 3761(b) is similar to the

petition for enforcement of a government unit’s own orders

described in Pa.R.A.P. 3761(a), both are deemed to be

addressed to the appellate jurisdiction of the Commonwealth

Court, and thus appealable to the Supreme Court only by

filing a petition for allowance of appeal.

Id. (emphasis added).

10

1. Mandamus

The Department first objects to this Court’s “jurisdiction” over that

portion of the petition for review that seeks a writ of mandamus in our original

jurisdiction. The Department argues that a request for a writ of mandamus is

inappropriate here because a petition to enforce is the only appropriate vehicle

through which to seek enforcement in this Court of an OOR final determination. We

agree.

Final determinations of the OOR compelling disclosure of records from

local agencies may be enforced by writs of mandamus issued by the courts of

common pleas. Capinski v. Upper Pottsgrove Township, 164 A.3d 601, 606 (Pa.

Cmwlth. 2017) (where a final determination of the OOR concludes that requested

documents are disclosable, a local agency has a ministerial duty to provide them to

a requester; because the RTKL does not provide another enforcement remedy to a

requester, a writ of mandamus is appropriate). Rule 3761(b), by contrast, authorizes

the filing in this Court of petitions to enforce OOR final determinations compelling

the production of records by Commonwealth, Legislative, and Judicial agencies.

Mandamus, therefore, is not in this instance an appropriate or necessary remedy

either in our original or appellate jurisdiction.

However, we see this defect in Requester’s petition for review more as

a failure to state a cognizable claim rather than a lack of “jurisdiction.” This Court

routinely considers requests for, and, where appropriate, issues writs of mandamus

directing Commonwealth agencies to comply with clearly-established ministerial

duties. See 42 Pa.C.S. § 761(a)(1) (conferring subject matter jurisdiction on this

Court to preside over civil actions against the Commonwealth government). We

therefore have “jurisdiction” over those sorts of actions. There are, nevertheless,

11

circumstances where mandamus is not an appropriate remedy against a

Commonwealth agency for various reasons. In such circumstances, we will sustain

a demurrer to a mandamus claim as legally deficient. See, e.g., Firearm Owners

Against Crime – Institute for Legal, Legislative, and Educational Action v.

Evanchick, 291 A.3d 507, 516-17 (Pa. Cmwlth. 2023) (dismissing mandamus claims

for failure to establish any enforceable, non-discretionary, ministerial duties on the

part of the Pennsylvania State Police).

Here, and as set forth in the Department’s second preliminary objection,

the problem with Requester’s mandamus request is not that we cannot hear such a

claim, but, rather, that Requester has failed to establish either that mandamus is the

appropriate remedy or that the essential elements of the claim are present here. A

writ of mandamus is appropriate only where a petitioner establishes (1) a mandatory

or ministerial act by a government agency; (2) the petitioner’s clear right to compel

performance of the act; (3) the respondent’s present duty to perform the act; and (4)

that another appropriate and adequate remedy does not exist. Evanchick, 291 A.3d

at 515. Requester has not pled any facts that could establish any of these elements.

The OOR’s Final Determination is not “final” and, therefore, does not establish a

mandatory or ministerial duty. The OOR also did not compel disclosure of any of

the records withheld by the Department. Requester therefore has no clear right to

performance and the Department no corresponding duty to perform. Lastly, Rule

3761(b) clearly provides for an alternative and adequate remedy—a petition to

enforce—to obtain the relief Requester seeks. Thus, we conclude that Requester’s

mandamus claim fails as a matter of law and not for lack of jurisdiction. We

accordingly will overrule the Department’s first preliminary objection, sustain the

second, and dismiss Requester’s mandamus claim.

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2. Petition to Enforce

We also agree with the Department that Requester cannot, at this

juncture, maintain a petition to enforce in this Court. It is clear that Requester’s

petition for review seeks appellate review of the OOR’s Final Determination and

specifically requests that we reverse it and order disclosure of the withheld records.

Given the pendency of Requester’s appeal, the OOR’s Final Determination is not

yet “final” for enforcement purposes, and a petition to enforce is premature. See

Pa.R.A.P. 3761(b), Note. Moreover, the OOR denied Requester’s appeal and did

not direct disclosure of the withheld records. So even if the Final Determination was

“final” at this point, which it is not, Requester could not seek its enforcement in any

event. Finally, and on a more technical point, even if the petition to enforce was

properly before us, such petitions are filed in our appellate, and not original,

jurisdiction. Id.

For all of these reasons, we conclude that Requester’s petition to

enforce fails as a matter of law. We accordingly sustain the Department’s third

preliminary objection and dismiss this portion of the petition for review. Because

we likewise have dismissed the mandamus claim, no claims in our original

jurisdiction remain.

B. Review of the OOR’s Final Determination

We turn next to our appellate review of the OOR’s Final Determination.10

When resolving disputes concerning the public nature of records sought by a requester

10

We recently summarized our standard and scope of review in appeals relating to RTKL

decisions of Commonwealth agencies:

Pursuant to Chapter 13 of the RTKL, with respect to appeals relating

to decisions of Commonwealth agencies, this Court is the ultimate

factfinder in RTKL disputes. Accordingly, we owe no deference to the

(Footnote continued on next page…)

13

under the RTKL, we begin with a presumption of transparency and construe narrowly

the statutory exemptions from disclosure. American Civil Liberties Union v.

Pennsylvania State Police, 232 A.3d 654, 656-57 (Pa. 2020). Records in the possession

of a Commonwealth agency are presumed to be public unless they are (1) exempted by

Section 708 of the RTKL, 65 P.S. § 67.708; (2) protected by a privilege; or (3)

exempted under any other federal or state law, regulation, or judicial order or

decree. Section 305(a) of the RTKL, 65 P.S. § 67.305(a). Under Section 708(a)(1) of

the RTKL, “[t]he burden of proving that a record of a Commonwealth agency or local

agency is exempt from public access shall be on the Commonwealth agency or local

agency receiving a request by a preponderance of the evidence.” 65 P.S. § 67.708(a)(1).

1. Items 5, 15, 16, and 18-22

Items 5, 15, 16, and 18 through 22 of the Request all seek production of

records related to rate filings that were disapproved by the Department on various

grounds. The Department is required to review proposed rate increases and disapprove

them if the Department finds that they are excessive, inadequate, or unfairly

discriminatory. See Sections 303(a) and 304(b) of the Accident and Health Filing

Reform Act, 40 P.S. §§ 3801.303(a), 3801.304(b).11 The Department asserted in its

OOR’s legal analysis or factfinding, as our standard of review of a final

determination of the OOR is [de novo]. In addition, we are entitled to

the broadest scope of review, covering all justiciable issues raised and

preserved below. Unlike in other administrative agency contexts, we

may substitute our own findings of fact for that of the agency. We have

the discretion to conduct a hearing, or to remand to the OOR, to

supplement the record.

Pennsylvania Office of Governor v. Brelje, 312 A.3d 928, 932 (Pa. Cmwlth. 2024) (internal citations,

quotations, bracketing, and edits removed).

11

Sections 303(a) and 304(b) of the Act of December 18, 1996, P.L. 1066, as amended.

14

Response, argued before the OOR, and argues again in this Court, that the requested

records related to its rate disapprovals do not exist because it maintains a six-month

retention policy for such records. Because the Request sought such records in 2023 for

records obtained or generated between 2009 and 2019, the records were long ago

destroyed. The Department also contends that it has no duty pursuant to Section 506(d)

of the RTKL, 65 P.S. § 67.506(d), to contact any insurance companies that may retain

some or all of these records because the Department did not contract with any of those

companies to perform a governmental function on its behalf. It accordingly argues that

it does not have “constructive” possession of any responsive records.

The OOR concluded that the Department carried its burden to establish

that the records requested under these items did not exist:

In support of [the Department’s] argument, the Swartz

Attestation states, in relevant part, as follows:

With regard to Item 5 above, the Department does not

possess or have custody or control of any records

within the scope of the [R]equest as the Department’s

approved record retention period for disapproved or

withdrawn filings is [six] months from the date of that

disposition. All of the records requested relate to the

timeframe of 2009-2019[,] so any disapproved filings

in that time period do not exist. Similarly, with regard

to [I]tems 15, 16, 18, 19, 20, 21, and 22, the

Department does not have any records within the scope

of those requested items in its possession, under its

custody or [in] its control[,] as the Department denies

unreasonable, discriminatory, or other unacceptable

rates. As such, filings with such rates are disapproved

and are subject to the [six-]month retention period

described above and no longer exist.

....

Here, the Department has demonstrated, by a

preponderance of the evidence, that [it] is not in

15

possession of records responsive to Items 5, 15, 16, and

18-22 of the Request because any responsive records

would have been discarded according to the Department’s

records[-]retention policies. Therefore, the Department

has met its burden of proof that it does not possess the

records sought in Items 5, 15, 16, and 18-22 of the

Request.

(Final Determination, at 7-8) (footnote and most internal citations and quotations

omitted).

Upon review, we agree with the OOR. The burden of proving that a

requested record does not exist lies with the agency responding to a RTKL request.

Hodges v. Pennsylvania Department of Health, 29 A.3d 1190, 1192 (Pa. Cmwlth.

2011). An attestation by the individual who searched for responsive records may be

sufficient to meet an agency’s burden of proving a record’s nonexistence. Id.

Generally, relevant and credible testimonial affidavits or statements made under the

penalty of perjury may be sufficient to carry an agency’s burden to establish the non-

existence or non-public nature of a record. Sherry v. Radnor Township School District,

20 A.3d 515, 520-21 (Pa. Cmwlth. 2011); McGowan v. Pennsylvania Department of

Environmental Protection, 103 A.3d 374, 381 (Pa. Cmwlth. 2014). To be sufficient,

the affidavits “must be detailed, nonconclusory, and submitted in good faith.” Payne

v. Pennsylvania Department of Health, 240 A.3d 221, 226 (Pa. Cmwlth. 2020) (quoting

Office of the Governor v. Scolforo, 65 A.3d 1095, 1103 (Pa. Cmwlth. 2013)). In the

absence of any evidence of bad faith, averments in an attestation should be accepted as

true. McGowan, 103 A.3d at 382-83.

The Department submitted the Swartz Attestation, through which it

explained that it maintains a six-month records retention policy for records relating to

disapproved or withdrawn rate approval filings. The RTKL does not affect or vitiate

such a policy. See Section 507 of the RTKL, 65 P.S. § 67.507 (“nothing in this act

16

shall be construed to modify, rescind or supersede any record retention policy

established pursuant to law, regulation, policy or other directive”). Requester did not

introduce any evidence before the OOR establishing that the Department maintains this

policy in bad faith or that the records do in fact exist. Accordingly, there is nothing in

the record undermining the credibility of the Swartz Attestation, which is sufficient to

carry the Department’s burden. The OOR therefore properly relied on it to conclude

that the Department had carried its burden to establish that the requested records did

not exist.

Requester does not appear to contend that the Department possesses the

requested records, but, rather, argues that the Department should obtain the requested

records from the insurance companies that submitted them to the Department. See

Petition for Review, p. 19, ¶ 19. Although the OOR did not explicitly address the

question, we agree with the Department that it was not required to contact any

insurance companies that might possess one or more of the requested records. Pursuant

to Section 506(d) of the RTKL, certain records of third-party entities are considered to

be within the constructive possession of a government agency if the records relate to

“governmental functions” performed for the agency:

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). See also Dental Benefit Providers, Inc. v. Eiseman, 86 A.3d

932, 939 (Pa. Cmwlth. 2014) (“[N]on-exempt records of a third party may be subject

to disclosure, provided the third party in possession has a contract with the agency to

17

perform a governmental function, and the information directly relates to the

performance of that function.”).

Here, there is no evidence in the record indicating that any of the insurance

companies that submitted rate approval filings contract to provide any governmental

services for the Department or that the requested records relate to any such services.

Accordingly, we conclude that the Department was not obligated to obtain the

requested records from any insurance companies.

We accordingly affirm the OOR’s denial of Requester’s appeal with

regard to Items 5, 15, 16, and 18 through 22 of the Request.

2. Items 1-4, 7-14, 17, 23 and 24

Items 1 through 4, 7 through 14, 17, 23 and 24 of the Request seek records

and information utilized by the Department in reviewing rate adjustments for health

insurance premiums. In its Response, the Department provided a public weblink to

certain records responsive and withheld others pursuant to several exemptions in the

RTKL, including the “predecisional deliberations” exemption found at Section

708(b)(10), 65 P.S. § 67.708(b)(10). The OOR concluded that the Department carried

its burden to establish the application of this exemption.

Section 708(b)(10)(i)(A) exempts from public disclosure a record that

reflects

[t]he internal, predecisional deliberations of an agency, its

members, employees or officials or predecisional

deliberations between agency members, employees or

officials and members, employees or officials of another

agency, including predecisional deliberations relating to a

budget recommendation, . . . or course of action or any

research, memos or other documents used in the

predecisional deliberations.

18

65 P.S. § 67.708(b)(10)(i)(A). Thus, to withhold a record under Section

708(b)(10)(i)(A), an agency must establish that (1) the contents of the record are

internal to the agency; (2) the contents of the record are deliberative; and (3) the

deliberations reflected are predecisional, i.e., occurred before an agency decision or

course of action. Office of Governor v. Davis, 122 A.3d 1185, 1193 (Pa. Cmwlth.

2015). See also Kaplin v. Lower Merion Township, 19 A.3d 1209, 1214 (Pa. Cmwlth.

2011).

To establish that the contents of requested records are deliberative, an

agency must establish with specific facts that they relate to the deliberation of a

particular decision. McGowan, 103 A.3d at 383. The record must make

recommendations or express opinions on legal or policy matters and cannot be purely

factual in nature. Payne, 240 A.3d at 227; Kaplin, 19 A.3d at 1214. Further, although

factual material contained in otherwise deliberative documents is required to be

disclosed if it is severable from its context, see McGowan, 103 A.3d at 382-83, such

material can still qualify as deliberative information if its “disclosure would so expose

the deliberative process within an agency that it must be deemed excepted” or “would

be tantamount to the publication of the agency’s evaluation and analysis.” Id. at 387

(citation and quotations omitted) (bracketing removed). If an agency seeks to establish

the application of this exemption by way of affidavit, the affidavit “must be specific

enough to permit the OOR or this Court to ascertain how disclosure of the [record]

would reflect the internal deliberations.” Payne, 240 A.3d at 226 (quoting Scolforo,

65 A.3d at 1104).

In support of this exemption, the Department submitted the Swartz

Attestation, which states, in relevant part, as follows:

The Bureau of Life and Accident and Health Insurance

[(Bureau)] is responsible for reviewing and approving

19

the rates, policies and forms associated with life

insurance and accident and health insurance sold in the

Commonwealth of Pennsylvania. Through this

process, life insurance and accident and health insurers

submit their required rates, policies and forms for

review and approval by the Department through an

online filing portal known as the System for Electronic

Rate and Form Filing, or “SERFF.” For rates, this

approval and review process involves an in-depth

review of the rate by an actuarial employee of the

Bureau in order to determine whether such rates are

actuarily justified, sufficient, not excessive and fair to

insurance consumers. . . .

This review process includes multiple internal

discussions among Department personnel, including

forms reviewers and actuarial staff[,] before making a

decision to approve or disapprove the filing. Those

internal discussions rely on all the information and

records gathered as part of the investigation into the

proprietary rates, policies or forms. These discussions

and deliberations occurring about whether to approve

or disapprove any particular rate or filing occur internal

to the agency and do not involve any external third

parties. All communications with the companies were

disclosed[;] only communications within the

Department seeking thoughts, analysis and

considerations from individuals participating in the

reviews were withheld.

....

The excluded records with regards to Items 1, 2, 3, 4,

7, 8, 9, 10, 11, 12, 13, 14, 17, 23, and 24 that are not

public involve records that reflect the internal,

predecisional deliberations of the agency and/or have

been identified by the submitting insurers as being

confidential, proprietary information that is deemed

trade secret. All other records associated with the

filings within the scope of the Request are publicly

available through the links identified above and

provided to [] Requester.

20

(C.R., OOR Ex. 5, 000025-28) (internal citations omitted). The Department also

submitted the Supplemental Swartz Attestation, which states, in relevant part, as

follows:

The Bureau [] is responsible for reviewing and

approving the rates, policies and forms associated with

life insurance and accident and health insurance sold in

the Commonwealth of Pennsylvania. Through this

process, life insurance and accident and health insurers

submit their required rates, policies and forms for

review and approval by the Department through an

online filing portal known as . . . “SERFF.” When

insurance companies submit rate and filing information

to the Department, they mark records confidential and

proprietary. The records at issue here, actuarial

memoranda, include company-specific formulas and

analyses and were marked as confidential. In addition,

these memoranda contain factual information and the

facts contained therein are deliberative and integral to

the deliberative process. Without them, the Department

would be unable to review and analyze the insurance

companies’ rates and forms proposals to determine if

they comply with applicable Pennsylvania law. The

Department relies on these when making the decision

whether to approve or disapprove any given filing.

All communications with the companies were

disclosed via the SERFF system. Only internal

predecisional deliberations and communications within

the Department seeking thoughts, analysis and

considerations from individuals participating in the

reviews, of which the actuarial memoranda are an

integral part, were withheld.

(C.R., OOR Ex. 9, p. 000004.)

In concluding that the predecisional deliberations exemption applied, the

OOR reasoned as follows:

Here, the Request seeks information that the Department

used in reviewing different rate adjustments for health

21

insurance premiums. The Department explains that “all

documents and investigative materials, records of telephone

calls, notes, exhibits, records, correspondence and reports

created, developed and/or received in the process of the

Department’s review and analysis of insurance rates, policies

and forms submitted for approval are maintained in the

SERFF system.” See Swartz Attestation, [C.R., OOR Ex. 5,

pp. 000025-26]. The Department further explains that “[i]f

an insurance product or rate is approved, then SERFF has a

mechanism that allows for a publicly accessible portal that

allows for public inspection of the approved rate, policy or

form, as well the interactions between the insurer making the

filing and the Department’s reviewers and actuaries that

approved the filing.” Id. Finally, the Department explains

that the “actuarial memoranda” submitted to the Department

“include company-specific formulas and analyses and were

marked as confidential” and that the Department “relies on

this information when making decisions whether to approve

or disapprove any given filing.” [(]Supplemental Swartz

Attestation[, C.R., OOR Ex. 9, p. 000004.)] See also

Highmark Inc. v. Voltz, 163 A.3d 485, 493 (Pa. [Cmwlth.]

2017)[.]

Thus, the Department has demonstrated that those portions

of the records responsive to Items 1-4, 7-14, [17,] 23, and 24

that have not been provided to [] Requester relate to

“multiple internal discussions among Department personnel”

that rely “on all the information and records gathered as part

of the investigation into the proprietary of those rates,

policies or forms.” Accordingly, based on the evidence

presented, the Department has met its burden of proof that

these records not accessible via the Department’s website are

exempt from disclosure as internal, predecisional

deliberations. 65 P.S. § 67.708(b)(10).

(Final Determination, at 9-12) (original bracketing and footnotes omitted; included

bracketing supplied).

We again agree with the OOR’s analysis. The Swartz Attestation and

Supplemental Swartz Attestation thoroughly and adequately explain the records

22

withheld by the Department and the “predecisional deliberations” to which they relate.

The Attestations together show that the requested records are internal to the

Department and contain deliberative and predecisional analysis and opinions, and

Requester again did not introduce in the record any evidence of bad faith or other

grounds for concluding that the Attestations were not credible. The Department

provided access to voluminous documents requested under Items 1-4, 7-14, 17, 23, and

24, including documents and communications exchanged with the insurance

companies. The Department withheld only the actual internal deliberative

communications “seeking thoughts, analysis[,] and considerations from individuals

participating in the reviews.” (C.R., OOR Ex. 9, p. 000004.) The fact that these records

might also contain records submitted from the insurance companies does not defeat the

application of the exemption. See Davis, 122 A.3d at 1193 (“The origination of

records from outside an agency does not preclude application of the RTKL

exceptions.”) (citation omitted).

Further, this is not a situation where an agency submitted a generalized

affidavit that included only a list of subjects to which the withheld records might relate

to establish that the records were “deliberative.” See Scolforo, 65 A.3d at 1104. This

also is not a case where an agency withheld certain “scores” assigned to applications it

was considering while simultaneously disclosing the scores for other applications,

none of which reflected actual internal deliberations of the agency. See Payne, 240

A.3d at 227-28. Rather, here, the Department included detailed attestations explaining

its deliberation process and how the withheld records would reflect its decision-

making, all the while disclosing volumes of non-deliberative records related to the rate

approval process. We agree with the OOR and the Department that disclosing the

23

withheld records “would be tantamount to the publication of the agency’s evaluation

and analysis.” McGowan, 103 A.3d at 387.

For these reasons, we affirm the OOR’s Final Determination with regard

to Items 1-4, 7-14, 17, 23, and 24 of the Request.

3. Item 6

Item 6 of the Request seeks records showing the “failure to meet

regulatory requirements, requiring rebates to be issued on premiums paid or where

premium differences or miscalculations were paid back to insureds.” (C.R., OOR

Exhibit 1, p. 000072.) The Department responded that the requested records were

exempt under the noncriminal investigation exemption found at Section 708(b)(17) of

the RTKL, 65 P.S. § 67.708(b)(17). The Department argued before the OOR and

argues again in this Court that these records are exempt because they relate to

investigative files associated with its handling of complaints and referrals submitted to

the Department to investigate potential violations of, and compliance with, insurance

laws and regulations.

Section 708(b)(17) exempts from disclosure “[a] record of an agency

relating to a noncriminal investigation[.]” 65 P.S. § 67.708(b)(17). Pertinently,

included within this exemption are “[c]omplaints submitted to an agency[,]”

“[i]nvestigative materials, notes, correspondence and reports[,]” and records that, if

disclosed, would “[r]eveal the institution, progress or result of an agency investigation,

except the imposition of a fine or civil penalty, the suspension, modification or

revocation of a license, permit, registration, certification or similar authorization[.]”

Id., § 67.708(b)(17)(A)(i)-(ii), (vi)(A). To establish the applicability of the

noncriminal investigation exemption, an agency must establish that “a systematic or

searching inquiry, a detailed examination, or an official probe” was conducted

24

regarding a noncriminal matter. Pennsylvania Department of Health v. Office of Open

Records, 4 A.3d 803, 810-811 (Pa. Cmwlth. 2010). The inquiry, examination, or probe

must be conducted as part of an agency’s official duties and pursuant to its

legislatively-granted factfinding and investigative powers. Id. at 814; Pennsylvania

Department of Public Welfare v. Chawaga, 91 A.3d 257, 259 (Pa. Cmwlth. 2014).

However, the investigation must surpass the agency’s routine performance of its duties,

and the agency cannot rely merely on broad statements that an investigation occurred

to satisfy its burden to prove the applicability of the exemption. Pennsylvania Public

Utility Commission v. Friedman, 293 A.2d 803, 828 (Pa. Cmwlth. 2023).

Here, in support of the noncriminal investigation exemption, the

Department submitted the Buono Attestation, which describes the Department’s

investigative process at length:

The Bureau of Consumer Services is responsible for assisting

consumers and investigating consumer complaints that

involve various insurance issues pursuant to the

[Department]’s duties legislatively prescribed to it under

[Section 201 of the Insurance Act,] 40 P.S. § 41, which

established the Department and charged it with “the

execution of the laws of this Commonwealth in relation to

insurance.” Investigating complaints from consumers and,

as part of those investigations, assessing whether licensees

of the Department have committed potential violations of

insurance laws and regulations[,] is part of the Department’s

responsibility for the “execution” of the laws imposed by the

legislature pursuant to 40 P.S. § 41. In addition, the

Department is legislatively authorized to conduct

investigations of licensees pursuant to the legislatively

enacted regulatory scheme for the regulation of the

Commonwealth’s insurance market pursuant to [the

Insurance Act]. As such, the Department has been

legislatively authorized to conduct investigations into

consumer complaints in order to determine licensee

compliance with the Commonwealth’s insurance laws.

25

The Department conducts an investigation into each and

every complaint received by the Department. Part of the

standard investigative inquiry into the complaint involves a

determination of whether the Department has jurisdiction

over the matter alleged. Any time that the Department

investigates a complaint, the assigned investigator conducts

a systematic and searching inquiry into the allegations of the

complainant and the activities of the involved insurance

licensee, and a determination of whether the Department has

jurisdiction over the matters and allegations involved. The

Department lacks authority to conduct criminal

investigations and prosecutions, so any such investigation of

a regulated individual or entity conducted by the Department

is noncriminal in nature.

As a result of the Department’s initial investigation of a

consumer complaint, if jurisdiction is determined to lie

outside of the Department, whenever possible, a referral is

made to another agency that might have jurisdiction to

handle the complaint. If jurisdiction is found to be within the

purview of the Department, the Bureau [of Consumer

Services] makes inquires of insurance companies and other

licensees or individuals involved in the claims being

investigated. The Department collects all relevant

information to determine whether Pennsylvania insurance

laws and/or standard insurance practices have been violated.

If a violation is found, the complainant and the insurance

company are advised of [the Department’s] findings and

appropriate action is taken. The investigation file may be

referred to other divisions within [the Department], including

the Bureau of Licensing and Enforcement[,] for further

investigation or enforcement action. All documents and

investigative materials, records of telephone calls, notes,

exhibits, records, correspondence[,] and reports created,

developed and/or received in the process of the Department’s

investigation of complaints are maintained in the

investigative file.

....

If a violation is found, the matter can be resolved through a

number of methods depending upon the nature of the

26

violation. The investigations within this unit can result in the

imposition of fines, penalties, restitution, licensure action

and other remedies allowable under the Commonwealth’s

insurance laws and regulations. If no violations are found,

investigations can be closed with no action. Also, warning

letters could be issued, a [c]onsent [o]rder could be

negotiated with the involved licensee, or the matter could be

referred to the Office of Chief Counsel for further legal

action and/or the filing of an [o]rder to [s]how [c]ause.

Because the Department lacks jurisdiction over criminal

matters, if violations of the [C]rimes [C]ode[12] are

potentially involved, referrals could be made to an

appropriate law enforcement agency. All documents and

investigative materials, records of telephone calls, notes,

exhibits, records, correspondence and reports created,

developed and/or received in the process of the Department’s

investigation of complaints are maintained in the

investigative file. In addition, all records relating to these

investigations are subject to the confidentiality afforded by

[Section 679-A of the Insurance Act, added by the Act of

December 6, 2002, P.L. 1183,] 40 P.S. [§] 310.79, which

states that any “documents, materials or other information in

the control or possession of the [D]epartment which is

furnished by an insurer or licensee . . . or which is obtained

by the [D]epartment in an investigation . . . shall be

confidential by law and privileged” and “shall not be subject

to the [RTKL].” However, all [c]onsent [o]rders resulting

from investigations and [o]rders from the Insurance

Commissioner resulting from the filing of an [o]rder to

[s]how [c]ause are all public in nature and are posted on the

[] Department’s website.

....

[With regard to Item 6 of the Request,] [r]egardless of

whether the records relating to any “failure to meet

regulatory requirements” resulted from an investigation

conducted by the Bureau of Consumer Services, the Bureau

12

18 Pa.C.S. §§ 101-9546.

27

of Licensing and Enforcement or the Bureau of Market

Actions, any underlying investigatory records are considered

confidential and may be statutorily protected from

disclosure. Further, final action taken as a result of an

investigation conducted by the Bureau of Licensing and

Enforcement or the Bureau of Market Actions would be

made publicly available by the posting on the Department’s

website of the resulting [c]onsent [o]rder, decision of the

Insurance Commissioner resulting from an [o]rder to [s]how

[c]ause or a final examination report and associated [c]onsent

[o]rder from a market conduct examination.

(C.R., OOR Ex. 5, pp. 000031-34.)

The OOR concluded as follows with regard to Item 6:

The Department has the power and authority to execute the

laws of the Commonwealth of Pennsylvania in relation to

insurance. See 40 P.S. § 41. Additionally, the Department is

statutorily authorized to respond to complaints of suspected

insurance fraud and unfair trade practices, investigate claims,

and report findings to the appropriate law enforcement

agency. [Section 1142(3), (4), and (7) of the Insurance Act,

added by the Act of December 6, 2002, P.L. 1183,] 40 P.S.

§[] 325.42(3), (4) & (7); [Section 7 of the Unfair Insurance

Practices Act,13] 40 P.S. § 1171.7.

In this instance, [] Requester does not challenge the

attestation provided by the Department, which shows that the

Department conducts authorized investigations into every

complaint it receives ([i.e.,] those relating to the “failure to

meet regulatory requirements, requiring rebates to be issued

on premiums paid or where premium differences or

miscalculations were paid back to insureds”). Because all

records obtained or produced by the Department in an

investigation are confidential pursuant to the Insurance []

Act, and the Department conducts an investigation into every

complaint it receives, the Department has met its burden of

proving that complaints and related investigative files are

13

Act of July 22, 1974, P.L. 589.

28

related to noncriminal investigations conducted pursuant to

the Department’s legislatively granted authority.

(Final Determination, at 15-16) (some internal citations and quotations omitted).

We agree. Even construing the exemption narrowly, as we must, see

Pennsylvania Public Utility Commission v. Nase, 302 A.3d 264, 269 (Pa. Cmwlth.

2023), we nevertheless conclude that the Department established via the Buono

Attestation that the records requested in Item 6 related to the Independence Companies’

failure to comply with insurance regulatory standards concern searching inquiries of

noncriminal matters conducted by the Department pursuant to its official, legislatively-

granted investigative powers. Requester again has not introduced any evidence

undermining the veracity of the Buono Attestation, and we see no reason to find it not

credible.

The confidentiality of the Department’s investigations of consumer

complaints and other potential violations of the Commonwealth’s insurance laws

serves an important public interest in encouraging reporting and avoiding a chilling

affect on insurance consumers who observe violations or are subject to misconduct.

We consistently have recognized the importance of this interest in RTKL cases where

Commonwealth agencies conduct similar searching inquiries into potential violations

of federal and state laws that affect the public. See, e.g., Department of Health, 4 A.3d

at 811-12 (records related to surveys and inspections conducted of nursing homes to

determine legal compliance were exempt from disclosure as noncriminal investigation

records); Michak v. Department of Public Welfare, 56 A.3d 925, 928-29 (Pa. Cmwlth.

2012) (daycare provider license inspection summaries created by the Department of

Public Welfare exempt from disclosure as documents related to noncriminal

investigations); Pennsylvania Public Utility Commission v. Gilbert, 40 A.23d 755,

760-62 (Pa. Cmwlth. 2012) (gas utility safety inspection reports exempt as noncriminal

29

investigation records because they involve searching examinations of a gas utility’s

operations and compliance with applicable federal and state pipeline safety

regulations).

Further, we find the Department’s investigations of the Independence

Companies’ insurance law violations to be more than mere routine, inspection-like

inquiries that we have concluded do not qualify for the noncriminal investigation

exemption. See, e.g., Pennsylvania Department of Labor and Industry v. Darlington,

234 A.3d 865, 877 (Pa. Cmwlth. 2020) (records related to routine field inspections did

not qualify for noncriminal investigation exemption). Rather, the investigative

materials withheld by the Department relate to specific investigations prompted by

consumer complaints or otherwise and can result in the imposition of penalties and

fines, among other sanctions. These investigations, including those of the

Independence Companies, are not merely routine inspections conducted in the ordinary

course of the Department’s regulatory duties. Importantly, the final outcomes of such

investigations, including consent orders and/or Department reports, are published on

the Department’s website.

Finally, and in any event, Section 679-A of the Insurance Act explicitly

provides that documents, materials, or information obtained by the Department in an

investigation pursuant to the Insurance Act “shall be confidential by law and

privileged, shall not be subject to the [RTKL], shall not be subject to subpoena[,] and

shall not be subject to discovery or admissible in evidence in any private civil action.”

40 P.S. § 310.79. Thus, to the extent that the Department withheld any documents

received as part of its investigations into the Independence Companies’ insurance law

violations, they are independently exempt from disclosure under Section 679-A.

30

Accordingly, we affirm the OOR’s conclusion that the requested records

in Item 6 are exempt from disclosure pursuant to the noncriminal investigation

exemption. We further conclude that any documents, materials, or information

obtained by the Department pursuant to its investigations of the Independence

Companies’ insurance law violations is confidential and not disclosable pursuant to

Section 679-A of the Insurance Act.

4. Bad Faith

Lastly, we note that Requester includes in his statement of questions

involved a request for attorneys’ fees and costs, and also includes stray references to

“bad faith” and the general standard applicable to bad faith claims under the RTKL.

See Requester’s Br. at 7, 61-62. However, other than generically alleging that the

Department has acted in bad faith by not turning over all of the requested records,

Requester has not engaged in any meaningful analysis or advocacy explaining how the

Department engaged in bad faith in denying his Request in part, particularly given that

both the OOR and now this Court have concluded that the partial denial was legally

proper. See id. at 61-62. Further, although Requester included a stray allegation of

bad faith in his appeal to the OOR, see C.R., OOR Ex. 1, p. 000045, our review of

Requester’s several-hundred-page submissions to the OOR reveals that he did not

meaningfully develop the issue to any degree; nor did the OOR make any findings or

conclusions regarding bad faith. Given those facts, and given that Requester has failed

to adequately raise and brief the issue in this Court, we conclude that it is waived. See

Pa.R.A.P. 2119; City of Philadelphia v. Berman, 863 A.2d 156, 161 (Pa. Cmwlth.

2004) (a party’s failure to develop an issue in the argument section of its appellate brief

waives the issue). Even if the issue was not waived, Requester clearly has not carried

31

his burden to establish bad faith with any record evidence. Uniontown Newspapers,

Inc. v. Pennsylvania Department of Corrections, 185 A.3d 1161, 1170-71 (Pa. 2018).

III. CONCLUSION

Based on the foregoing, we overrule the Department’s first preliminary

objection, sustain its second and third preliminary objections, and dismiss the original

jurisdiction portion of Requester’s petition for review. We further affirm the OOR’s

Final Determination.

________________________________

PATRICIA A. McCULLOUGH, Judge

32

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Neil Anand, :

Petitioner :

:

v. : No. 318 M.D. 2023

:

Commonwealth of Pennsylvania, :

Pennsylvania Insurance Department, :

Respondent :

ORDER

AND NOW, this 11th day of October, 2024, for the reasons set forth in

the foregoing memorandum opinion, we OVERRULE the Pennsylvania Insurance

Department’s (Department) first preliminary objection, SUSTAIN the Department’s

second and third preliminary objections, and DISMISS the original jurisdiction

portion of Neil Anand’s Petition for Review, with prejudice. We further AFFIRM

the July 11, 2023 Final Determination of the Pennsylvania Office of Open Records

in its entirety.

________________________________

PATRICIA A. McCULLOUGH, Judge