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

> Commonwealth Court of Pennsylvania · October 11, 2024

URL: https://www.frixlaw.com/law-library/cases/10603576

## Case

- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** October 11, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** McCullough
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.

12
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10603576. Public record. Not legal advice.