UnitedHealthcare of Pennsylvania, Inc. v. DHS

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

UnitedHealthcare :

of Pennsylvania, Inc., :

:

Petitioner :

:

v. : No. 824 C.D. 2017

: Argued: April 10, 2018

Pennsylvania Department :

of Human Services, :

:

Respondent :

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE WOJCIK FILED: May 31, 2018

UnitedHealthcare of Pennsylvania, Inc. (UnitedHealthcare) petitions

for review from a final determination of the Pennsylvania Office of Open Records

(OOR), which denied its appeal from the Commonwealth of Pennsylvania,

Department of Human Services’ (DHS) partial denial of its request under the Right-

to-Know Law (RTKL).1 UnitedHealthcare contends that OOR erred or abused its

discretion by accepting DHS’s narrow interpretation of its request, ruling on

exemptions without the aid of an exemption log or in camera review, applying

incorrect findings applicable to another requester’s request, and finding that DHS

met its burden of proving nine emails were exempt under the noncriminal

investigation exception. Upon review, we affirm in part and vacate in part and

1

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

remand to OOR to reconsider the applicability of DHS’s proffered exemptions after

requiring and reviewing an exemption log of the documents withheld.

I. Background

This matter stems from a request for proposal (RFP) conducted by

DHS, pursuant to Section 513 of the Commonwealth Procurement Code

(Procurement Code),2 known as Original RFP No. 06-15 and Reissued RFP No. 06-

15 relating to the Physical HealthChoices Program.3 UnitedHealthcare was one of

eleven offerors that submitted proposals. However, DHS did not select

UnitedHealthcare to enter into contract negotiations. UnitedHealthcare protested the

bid.

On February 7, 2017, UnitedHealthcare submitted a nine-item RTKL

request for documents relating to the Reissued RFP, including proposal, evaluation

and Office of Inspector General (OIG) investigation documents (Request).

Specifically, UnitedHealthcare requested:

[A]ll public records relating to, received or produced by or

on behalf of the Commonwealth of Pennsylvania, its

agencies, employees and agents related to the Reissued

RFP #06-15, including, but not limited to, the following,

regardless of the form of the record:

a) All records and documents relating to the debriefing

meeting(s) between DHS representatives and

representatives of Pennsylvania Health & Wellness, Inc.

(“PA H&W”) in November and/or December 2016 at

2

Section 513 of the Procurement Code governs competitive sealed proposals.

62 Pa. C.S. §513.

3

This matter and the matters listed at Nos. 348 C.D. 2017, 543 C.D. 2017 and 660 C.D.

2017 all stem from RTKL requests seeking documents in connection with Original and/or Reissued

RFP No. 06-15. These cases were argued seriately before the panel.

2

which the error in scoring and/or rescoring of Small

Diverse Business (“SDB”) proposals was discussed;

b) All records and documents relating to any

communication by or between Lisa Allen, Sallie Rodgers,

any representative(s) of PA H&W and/or any

representative(s) of any other offeror(s) involved in the

procurement pursuant to the Reissued RFP #06-15 in any

way relating to the selection or potential selection of

offerors from November 2016 to the present;

c) All records and documents relating to the decision of

PA H&W to withdraw the portion of its proposal with

regard to the Northeast and Northwest Zones under the

Reissued RFP #06-15;

d) All records and documents relating to any

communication by or between any representative(s) of

DHS and any representative(s) of PA H&W concerning

the decision by DHS to permit PA H&W to modify its

original proposal by removing the portion of its proposal

pertaining to the Northeast and Northwest Zones under the

Reissued RFP #06-15;

e) All records and documents relating to any

communication by or between any representative(s) of

DHS and any representative(s) of any other offeror under

the Reissued RFP #06-15 with regard to the withdrawal of

the portion of the proposal from PA H&W for the

Northeast and Northwest Zones under the Reissued RFP

#06-15 and/or the decision by DHS to permit that

modification;

f) All records and documents relating to the decision of

DHS to select other offerors in lieu of PA H&W in the

Northeast or Northwest Zones due to the modification of

PA H&W’s original proposal to remove the portions of

that proposal relating to the Northeast and Northwest

Zones under the Reissued RFP #06-15;

g) All records and documents relating to any

communication by or between any representative(s) of

DHS and any representative(s) of the Office of the

3

Governor regarding the procurement and services

pursuant to the Reissued RFP #06-15, the SDB scoring

error, and the rescoring after discovery of the SDB scoring

error and the withdraw [sic] of the portions of the PA

H&W proposal relating to the Northeast and Northwest

Zones;

h) All records and documents relating to any

communication by or between any representative(s) of

DHS and any representative(s) of the [OIG] regarding the

procurement and services pursuant to the Reissued RFP

#06-15, the SDB scoring error, the rescoring after

discovery of the SDB scoring error and the withdraw [sic]

of the portions of the PA H&W proposal relating to the

Northeast and Northwest Zones; and

i) All records and documents relating to any

communication by or between any representative(s) of

DHS and the [OIG] with regard to any investigation(s) of

the procurement in connection with the original RFP #06-

15 and/or Reissued RFP #06-15.

Reproduced Record (R.R.) at 26a-27a.

DHS partially granted and partially denied the Request. In response to

Items (a), (c), (d), (e), (f) and (g), DHS withheld proposal information as temporarily

exempt until the contract is awarded, and the evaluation committee documents as

permanently exempt pursuant to the procurement exemption, Section 708(b)(26) of

the RTKL, 65 P.S. §67.708(b)(26). DHS also withheld documents responsive to

Items (h) and (i) under the noncriminal investigation exception, Section 708(b)(17)

of the RTKL, 65 P.S. §67.708(b)(17). DHS asserted additional grounds for

exemption because some records also contained internal, predecisional

deliberations, Section 708(b)(10) of the RTKL, 65 P.S. §67.708(b)(10), and personal

notes, Section 708(b)(12) of the RTKL, 65 P.S. §67.708(b)(12). To the extent it

4

granted the Request, DHS redacted personal identification information pursuant to

Section 708(b)(6)(i)(A) of the RTKL, 65 P.S. §67.708(b)(6)(i)(A). R.R. at 18a-24a.

UnitedHealthcare appealed to OOR, challenging the denials and

arguing that DHS failed to meet its burden of proving that the requested records are

exempt.

OOR invited the parties to supplement the record and directed DHS to

notify any third parties of their ability to participate in this appeal. DHS submitted

a position statement reiterating its grounds for denial and asserted new grounds for

withholding the records, including the attorney-client privilege and attorney-work-

product doctrine.4 In support, DHS submitted the affidavits of Erin Slabonik, DHS

Division Director of Managed Care (Slabonik Affidavits), and David Todd, the

Deputy Inspector General (Todd Affidavit).

UnitedHealthcare also submitted a position statement and affidavits. It

requested “a log of all records that have been withheld or redacted” and an in camera

review. R.R. at 152a, 170a.

OOR permitted offerors that submitted proposals to participate and

submit position papers. Those that participated argued that the RTKL protected the

requested documents related to their proposals from disclosure under multiple

exemptions, including the procurement, trade secret and confidential, proprietary

information exemptions, and presented affidavits in support.

OOR made additional requests for evidence and clarification. In

response, DHS provided a supplemental affidavit of Slabonik and an affidavit and

supplemental affidavit of Andrea Bankes, DHS Open Records Officer (Bankes

4

Commonwealth agencies are permitted to assert new grounds for denying a request on

appeal to OOR. See Levy v. Senate of Pennsylvania, 65 A.3d 361, 383 (Pa. 2013).

5

Affidavit). UnitedHealthcare responded with supplementary position statements

and additional affidavits.

On May 22, 2017, OOR issued its final determination. OOR denied

UnitedHealthcare’s appeal. OOR held that DHS reasonably interpreted Items (a),

(c), (d), (e), (f) and (g) as “seeking records that would be included as part of the

offerors’ proposals and records used by the Evaluation Committee,” which are

exempt under the procurement exemption, Section 708(b)(26) of the RTKL. OOR

Final Determination, 5/22/17, at 7. OOR concluded that DHS properly withheld

records or portions of records responsive to Items (a), (c), (d), (e), (f) and (g)

pursuant to the procurement exemption. Id. at 7-12. OOR also determined that DHS

properly withheld documents responsive to Items (h) and (i) as noncriminal

investigation documents pursuant to Section 708(b)(17) of the RTKL. Id. at 13-15.

In reaching its decision, OOR considered and relied upon DHS’s affidavits.

UnitedHealthcare petitioned for review. This Court granted

intervention to the offerors that participated in OOR proceedings, namely: Geisinger

Health Plan, Inc., Vista Health Plan, Inc., and PA H&W (collectively, Intervenors).

II. Issues

In this appeal,5 UnitedHealthcare contends that OOR erroneously relied

upon DHS’s purported interpretation of its Request where the plain language of the

Request supports a different interpretation. In addition, it claims that OOR erred or

abused its discretion by ruling on exemptions without requiring an exemption log or

in camera review to establish the basis upon which to consider such exemptions. It

further argues that OOR’s final determination is arbitrary and capricious and

5

This Court exercises plenary, de novo review of OOR’s determination in this matter.

Bowling v. Office of Open Records, 75 A.3d 453, 477 (Pa. 2013).

6

constitutes an abuse of discretion because OOR mistakenly refers to a request made

by another requester. Finally, UnitedHealthcare asserts that OOR erred in finding

that DHS met its burden of proving that nine emails were exempt under the

noncriminal investigation exception.

III. Discussion

A. Interpretation of the Request

First, UnitedHealthcare claims that OOR improperly accepted DHS’s

proffered interpretation of UnitedHealthcare’s Request regarding Items (a), (c), (d),

(e), (f) and (g) as requesting “proposals or records of a proposal Evaluation

Committee.” OOR’s Final Determination at 7-8. OOR found the interpretation

“reasonable” based on the language of the Request and the Slabonik Affidavits that

DHS routinely received such requests. Neither the Request nor Slabonik Affidavits

support DHS’s overly restrictive interpretation. UnitedHealthcare maintains that all

of the items in its Request “related to communications with or decisions from third

parties, after the submission of proposals.” Petitioner’s Brief at 11 (emphasis in

original). “UnitedHealthcare sought documents relating to communications

between DHS and other bidders after the scoring of the Evaluation Committee was

completed.” Id. at 11-12 (emphasis in original). UnitedHealthcare also sought

documents relating to a meeting between DHS representatives and one successful

offeror, PA H&W, which took place on December 19, 2016. UnitedHealthcare

asserts that such documents are not proposal documents or records of a proposal

Evaluation Committee. Simply because DHS routinely receives RTKL requests

seeking proposal and evaluation records from other requesters does not mean that

DHS can limit all requests related to an RFP so narrowly. DHS’s interpretation is

contradicted by Slabonik, who attested that UnitedHealthcare did not request

7

“evaluation documents.” R.R. at 135a. OOR’s acceptance of DHS’s proffered

interpretation without any proof constitutes a violation of Section 708 of the RTKL,

65 P.S. §67.708. On this basis, UnitedHealthcare requests a remand with

instructions for OOR to reconsider the interpretation of UnitedHealthcare’s RTKL

Request.

Under the RTKL, information is only subject to disclosure if it is a

“public record.” Section 301(a) of the RTKL, 65 P.S. §67.301(a). Records in

possession of a Commonwealth agency are presumed to be public unless they are:

(1) exempt under Section 708 of the RTKL; (2) “protected by a privilege”; or (3)

exempt under any other Federal or State law or regulation or judicial order or decree.

Section 305(a) of the RTKL, 65 P.S. §67.305(a).

The first step in determining whether an exemption under Section

708(b) applies is to compare the RTKL request with the language of the asserted

exemption. Heavens v. Department of Environmental Protection, 65 A.3d 1069,

1075 (Pa. Cmwlth. 2013). “A written request should identify or describe the records

sought with sufficient specificity to enable the agency to ascertain which records are

being requested . . . .” Section 703 of the RTKL, 65 P.S. §67.703. To determine

whether a request is sufficiently specific, courts examine:

(1) the subject matter of the request; (2) the scope of the

documents sought; and (3) the timeframe for the records

sought. While this test is a flexible one, the requirement

that a requester identify the subject matter of a request

necessitates that a requester “identify the transaction or

activity of the agency for which the record is sought.” In

addition, the requirement that a requester identify the

scope of the documents sought necessitates that a

requester “identify a discrete group of documents either by

type . . . or recipient.” Finally, although the timeframe

element of the “sufficiently specific” test is the most fluid

when evaluating a requester’s request, the request should

8

identify “a finite period of time for which records are

sought.”

Office of the District Attorney of Philadelphia v. Bagwell, 155 A.3d 1119, 1143 (Pa.

Cmwlth.), appeal denied, 174 A.3d 560 (Pa. 2017) (citations omitted) (Bagwell IV);

see Askew v. Pennsylvania Office of the Governor, 65 A.3d 989, 992 (Pa. Cmwlth.

2013). Although an agency may interpret the meaning of a request for records, that

interpretation must be reasonable and construed within the context of the request.

See Pennsylvania Department of Conservation and Natural Resources v. Vitali (Pa.

Cmwlth., No. 1013 C.D. 2014, filed July 9, 2015), slip op. at 10;6 see, e.g., Spatz v.

City of Reading (OOR, Dkt. No. AP 2013-0867, filed July 1, 2013); Signature

Information Solutions, Inc. v. City of Warren (OOR, Dkt. No. AP 2012-0433, filed

April 20, 2012).7

An agency bears the burden of proving, by a preponderance of the

evidence, that a record is protected from disclosure under one of the enumerated

exemptions or contains privileged material. Section 708(a)(1) of the RTKL,

65 P.S. §67.708(a)(1); Bagwell IV, 155 A.3d at 1130; McGowan v. Pennsylvania

Department of Environmental Protection, 103 A.3d 374, 380 (Pa. Cmwlth. 2014).

A preponderance of the evidence is a finding “that the existence of a contested fact

is more probable than its nonexistence.” Pennsylvania State Troopers Association

v. Scolforo, 18 A.3d 435, 439 (Pa. Cmwlth. 2011) (internal quotation marks

omitted).

6

Section 414 of this Court’s Internal Operating Procedures authorizes the citation of

unreported panel decisions issued after January 15, 2008, for their persuasive value, but not as

binding precedent. 210 Pa. Code §69.414.

7

Decisions of administrative boards or tribunals have no precedential value on this Court.

Scott v. Delaware Valley Regional Planning Commission, 56 A.3d 40, 44 (Pa. Cmwlth. 2012).

9

An agency may present sufficient evidence by the submission of

affidavits. Bagwell IV, 155 A.3d at 1120; McGowan, 103 A.3d at 381; Heavens, 65

A.3d at 1073.

Affidavits are the means through which a governmental

agency . . . justifies nondisclosure of the requested

documents under each exemption upon which it relied

. . . . The affidavits must be detailed, nonconclusory, and

submitted in good faith . . . . Absent evidence of bad faith,

the veracity of an agency’s submissions explaining

reasons for nondisclosure should not be questioned.

McGowan, 103 A.3d at 381 (quoting Office of the Governor v. Scolforo, 65 A.3d

1095, 1103 (Pa. Cmwlth. 2013) (citation omitted) (Scolforo)). However, conclusory

affidavits, standing alone, will not satisfy an agency’s burden of proof under the

RTKL. Id. Moreover, the affidavit must be specific enough to permit OOR or a

reviewing court to ascertain whether the claimed exemption applies to the records

requested. Id.

UnitedHealthcare claims it was seeking documents “related to

communications with or decisions from third parties, after the submission of

proposals” and “relating to communications between DHS and other bidders after

scoring of the Evaluation Committee was completed.” Petitioner’s Brief at 11-12

(emphasis in original). However, UnitedHealthcare’s actual Request was far more

extensive than that. See R.R. at 26a-27a.

DHS interpreted the Request as seeking documents submitted as part of

offerors’ proposals and evaluation documents that relate to DHS’s decision to select

offerors and offered affidavits in support. R.R. at 18a-24a. Slabonik interpreted the

Request as seeking “documents included as part of the offerors’ proposals and

documents that would include scoring and evaluation sheets, used by the Evaluation

Committee” as well as “correspondence, announcements, selection memorandum,

10

news releases, and similar documents related to the re-scoring but not evaluation

documents.” R.R. at 83a; accord R.R. at 84a. The Slabonik Affidavits are based on

Slabonik’s reading of the Request and her experience as DHS’s Division Director.

R.R. at 81a, 84a, 134a. Slabonik attested that DHS “routinely receives RTKL

requests for the scoring and evaluation records . . . .” R.R. at 84a.

Upon review of the Request and the Slabonik Affidavits, DHS’s

interpretation that UnitedHealthcare was seeking documents related to the proposals

and evaluation records was reasonable.8

B. Exemption Log

Next, UnitedHealthcare contends that OOR ignored

UnitedHealthcare’s repeated requests to require an exemption log of the withheld

documents and failed to conduct an in camera review of those documents to

determine whether the procurement exemption asserted for Items (a), (c), (d), (e), (f)

and (g) applied. Because DHS misinterpreted its Request and did not meet its burden

of proving the records were exempt, OOR’s failure to obtain an exemption log or

perform in camera review was a violation of Section 708 of the RTKL. According

to UnitedHealthcare, these evidentiary omissions are particularly glaring in light of

the fact that another offeror requested and was granted this same relief from the same

appeals officer in connection to records related to the same RFP. See Aetna Better

Health of Pennsylvania v. Department of Human Services (OOR, Dkt. No. AP 2017-

0572, filed July 14, 2017) (the appeals officer, following examination of the

exemption log and reviewing records in camera, ordered DHS to provide 32

8

If UnitedHealthcare was truly seeking documents after submission of proposals and after

scoring, or documents related to the December 19, 2016, meeting, it should have made its request

more specific. See Section 703 of the RTKL, 65 P.S. §67.703; Bagwell IV, 155 A.3d at 1143;

Askew, 65 A.3d at 992.

11

additional documents previously withheld). The appeals officer would not have

discovered DHS’s violations without the aid of an exemption log and in camera

review. Id. Without those same safeguards here, UnitedHealthcare cannot ascertain

whether responsive records were omitted and this Court cannot determine whether

the claimed exemption applies to all records responsive to its Request. Therefore,

UnitedHealthcare asks this Court to vacate and remand to OOR to reconsider the

applicability of DHS’s proffered exemptions after requiring an exemption log and

conducting in camera review.

In addition to affidavits, an agency may justify its exemptions with an

item-by-item indexing system, commonly referred to as a privilege or exemption

log.9 McGowan, 103 A.3d at 381; Heavens, 65 A.3d at 1075-77. Such a log

“typically lists the date, record type, author, recipients, and a description of the

withheld record . . . .” McGowan, 103 A.3d at 381. A log “can serve as sufficient

evidence to establish an exemption, especially where the information in the log is

bolstered with averments in an affidavit.” Id.; see Heavens, 65 A.3d at 1075. “An

index, even one containing minimal description, offers a tool for a fact-finder

reviewing corresponding records.” Office of the Governor v. Davis, 122 A.3d 1185,

1194 (Pa. Cmwlth. 2015).

In Bowling v. Office of Open Records, 990 A.2d 813, 825 nn.12-13 (Pa.

Cmwlth. 2010), aff’d, 75 A.3d 453 (Pa. 2013), this Court recognized the utility of

9

Although the terms are used interchangeably, a “privilege log” applies when a privilege

is asserted; an “exemption log” applies when an exemption is asserted. See McGowan, 103 A.3d

at 378; see also In re Thirty-Third Statewide Investigating Grand Jury, 86 A.3d 204, 207 n.2 (Pa.

2014) (recognizing that the term “privilege log” pertained to the attorney-client privilege and the

work-product exemption under Rule 573(G) of the Pennsylvania Rules of Criminal Procedure, Pa.

R. Crim. P. 573(G). This indexing system has also been referred to as a “Vaughn index,” based

on recognition of the approach in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). See Scolforo,

65 A.3d at 1104 n.13.

12

“an item-by-item indexing system which correlates to a specific . . . exemption,” but

cautioned that “a satisfactory index could undermine the exemption and, in those

cases, agencies may proffer generic determinations for nondisclosure.” In such

cases, agencies may “justify their exemptions on a . . . category-of-document basis.”

Bowling, 990 A.2d at 825 n.13. Under the category-of-document methodology, the

classification must enable a court to determine how each category of documents, if

disclosed, would interfere with the agency’s duty not to disclose exempt public

records. Id. However, “[i]t is not enough to include . . . a list of subjects” to which

an exemption may have related. Scolforo, 65 A.3d at 1104 (emphasis added). An

affidavit must be specific enough to permit OOR or this Court to evaluate the

exemptions as they apply to particular documents. Id.

OOR has the authority to request production of an exemption log and

to conduct in camera review of documents where an exemption or privilege has been

asserted. Office of Open Records v. Center Township, 95 A.3d 354, 369-70 (Pa.

Cmwlth. 2014). “Records reviewed in camera may serve as a sufficient basis for a

fact-finder to assess whether an exemption applies.” Davis, 122 A.3d at 1194.

However, where an agency sufficiently explains the basis for nondisclosure through

an affidavit, a log is not necessary. See Chambersburg Area School District v.

Dorsey, 97 A.3d 1281, 1289 (Pa. Cmwlth. 2014).

In Pennsylvania Department of Education v. Bagwell, 131 A.3d 638

(Pa. Cmwlth. 2016) (Bagwell III), we considered the sufficiency of affidavits to

establish the attorney-work-product privilege. There, the Pennsylvania Department

of Education (Department) appealed a final determination of OOR that directed the

disclosure of certain emails pursuant to the RTKL. In support, the Department

presented affidavits regarding the content of the requested documents, arguing that

13

the documents were protected by the attorney-work-product doctrine. However, the

Department did not submit an exemption log. We found the Department’s affidavits

to be “conclusory and vague” because they did not “describe the records with any

particularity as to how the privilege supports non-disclosure or redaction . . . of

allegedly responsive records.” Id. at 658 (emphasis added). “As a result, neither

OOR nor this Court had sufficient information to evaluate the exemptions.” Id.

(citing Davis, 122 A.3d at 1194).

Here, UnitedHealthcare was seeking documents related to the proposals

and evaluation records. DHS withheld the documents responsive to Items (a), (c),

(d), (e), (f) and (g) of the Request on the basis of Section 708(b)(26) of the RTKL,

which provides:

Except as provided in subsections (c) and (d), the

following are exempt from access by a requester under this

act:

***

(26) A proposal pertaining to agency procurement

or disposal of supplies, services or construction prior to

the award of the contract or prior to the opening and

rejection of all bids; financial information of a bidder or

offeror requested in an invitation for bid or request for

proposals to demonstrate the bidder’s or offeror’s

economic capability; or the identity of members, notes and

other records of agency proposal evaluation committees

established under 62 Pa. C.S. §513 (relating to

competitive sealed proposals).

65 P.S. §67.708(b)(26) (emphasis added).

In support, DHS presented evidence in the form of affidavits. The

Slabonik Affidavits describe the evaluation process, how the evaluation committee

evaluated the offerors, how DHS selected offerors for contract negotiations, and how

14

DHS interpreted and responded to the Request. R.R. at 84a-85a, 139a-42a. “[T]he

documents pertaining to the evaluation committee contain Evaluation Committee

members’ notes that are used solely for that individual member’s use in evaluating

the offerors’ proposals.” R.R. at 84a, 136a, 141a. The Slabonik Affidavits attest

that “[t]he Evaluation Committee materials and member names are to remain

confidential in order to shield the internal procurement process against external

threats to its integrity in order for the evaluators to freely express their opinions.”

R.R. at 85a, 142a. The responsive records include “offerors’ proposals and

documents that would include the scoring and evaluation sheets, used by the

Evaluation Committee in evaluating the technical submittals of the offerors’

proposals . . . .” R.R. at 83a, 135a. The Slabonik Affidavits then conclude that the

proposal and evaluation documents are exempt pursuant to Section 708(b)(26) of the

RTKL. R.R. at 86a, 143a.

In addition, Bankes attested in her affidavit that “the only documents

withheld were for the following: a. Proposal documents, pursuant to 65

P.S. §67.708(b)(26); b. Evaluation Committee records, pursuant to 65

P.S. §67.708(b)(26); and c. correspondence under the attorney-client and attorney-

work-product doctrine, pursuant to [Section 102 of the RTKL,] 65 P.S. §67.102

(definition of privilege).” R.R. at 144a-45a. OOR determined that the affidavits

constituted sufficient evidence justifying nondisclosure under the procurement

exemption and it did not request the production of an exemption log or review the

documents in camera.

Upon review, the affidavits primarily describe the general subject

matter of the documents requested, i.e., proposal and evaluation documents.

Although the Slabonik Affidavits refer to certain categories of documents, such as

15

the offerors’ proposals, scoring and evaluation sheets, which are clearly exempt, the

affidavits do not sufficiently describe or identify other types of documents

responsive to the Request. Without a description of the particular documents

withheld, other than DHS’s interpretation that the documents related to the proposals

and evaluation records, this Court is unable to assess whether all documents

responsive to the Request qualify for exemption and nonproduction. Thus, with

regard to the documents responsive to Items (a), (c), (d), (e), (f) and (g) of the

Request that DHS withheld on the basis of Section 708(b)(26) of the RTKL, we find

it necessary to vacate this portion of the final determination and remand to OOR to

reconsider the applicability of DHS’s proffered exemptions after requiring an

exemption log of those documents.

C. Arbitrary and Capricious

Next, UnitedHealthcare contends that OOR’s final determination is

arbitrary and capricious and constitutes an abuse of discretion because it mistakenly

refers to a request made by another requester, Aetna Better Health of Pennsylvania

(Aetna). The Slabonik Affidavits evidence a cut-and-paste job from Aetna’s RTKL

request, as they mistakenly refer to Aetna and its nonselection for contract

negotiations. R.R. at 83a; see id. at 134a. OOR repeated this error by referencing

these same paragraphs in its final determination. The inclusion of these factual

assertions are completely irrelevant to UnitedHealthcare’s Request and appeal.

“An abuse of discretion is more than just an error in judgment . . . .”

Commonwealth v. Smith, 673 A.2d 893, 895 (Pa. 1996); accord Belleville v. David

Cutler Group, 118 A.3d 1184, 1195 (Pa. Cmwlth. 2015). An abuse of discretion

occurs where the “judgment exercised is manifestly unreasonable, or the result of

partiality, prejudice, bias, or ill will.” Smith; 673 A.2d at 895; accord Tullytown

16

Borough v. Armstrong, 129 A.3d 619, 622 (Pa. Cmwlth. 2015); Belleville, 118 A.3d

at 1195. To be arbitrary and capricious, there must be a “willful and deliberate

disregard” of the evidence submitted “which one of ordinary intelligence could not

possibly have avoided in reaching a result.” Pocono Manor Investors, LP v.

Pennsylvania Gaming Control Board, 927 A.2d 209, 216 (Pa. 2007).

Here, OOR correctly cited numerous paragraphs of the Slabonik

Affidavits in support of its determination. It also cited the following two paragraphs,

which refer to Aetna:

20. Initially, the [R]equester’s client, Aetna . . . was not

selected for contract negotiations in all five zones per the

selection letter issued on November 18, 2016.

***

23. Based on the recalculated scores, Aetna was not

selected for contract negotiations in any of the five zones

per the selection letter issued on December 22, 2016.

OOR’s Final Determination, at 9. OOR’s mistaken reference to two immaterial

paragraphs does not demonstrate that the judgment exercised was “manifestly

unreasonable, or the result of partiality, prejudice, bias, or ill will.” Tullytown, 129

A.3d at 622. The challenged paragraphs have no relevance as to whether the records

requested by UnitedHealthcare are subject to disclosure under the RTKL. Rather,

the two paragraphs merely state that another offeror was not selected for negotiations

in DHS’s rescinded November selections and the December selections. Otherwise,

OOR’s final determination clearly and accurately refers to the Request at hand.

OOR’s inclusion of two immaterial paragraphs pertaining to another requester in the

context of numerous accurate paragraphs pertaining to the instant Request amounts

to harmless error. Such does not rise to the level of a “willful and deliberate

17

disregard” of the evidence “which one of ordinary intelligence could not possibly

have avoided in reaching a result.” Pocono Manor, 927 A.2d at 216.

D. Noncriminal Investigation Exception

Next, UnitedHealthcare argues that OOR erred by ignoring DHS’s

shifting explanations for withholding nine emails exchanged between DHS and OIG.

OOR found that DHS met its burden, but failed to examine conflicting evidence

presented by DHS’s own witnesses or address how DHS’s position shifted over time.

Section 708(b)(17) of the RTKL exempts from public disclosure

records relating to a noncriminal investigation. 65 P.S. §67.708(b)(17).

Specifically, Section 708(b)(17) exempts:

A record of an agency relating to a noncriminal

investigation, including:

***

(ii) Investigative materials, notes, correspondence

and reports.

***

(iv) A record that, if disclosed, would do any of the

following:

(A) Reveal 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 issued by an agency or an executed

settlement agreement unless the agreement is determined

to be confidential by a court.

65 P.S. §67.708(b)(17)(ii) and (vi)(A).

Here, UnitedHealthcare requested the following records:

18

h) All records and documents relating to any

communication by or between any representative(s) of

DHS and any representative(s) of [OIG] regarding the

procurement and services pursuant to the Reissued RFP

#06-15, the SDB scoring error, the rescoring after

discovery of the SDB scoring error and the withdraw of

the portions of the PA H&W proposal relating to the

Northeast and Northwest Zones; and

i) All records and documents relating to any

communication by or between any representative(s) of

DHS and [OIG] with regard to any investigation(s) of the

procurement in connection with the original RFP #06-15

and/or Reissued RFP #06-15.

R.R. at 33a.

DHS identified nine emails reflecting communications that occurred

between DHS and OIG. DHS excluded these emails because they relate to the

institution, progress, or result of an agency investigation. In support, DHS presented

the Todd Affidavit, which states that OIG conducts investigations of agencies

pursuant to the Pennsylvania Executive Order 1987-7 and explains in detail how

OIG conducts its investigations. R.R. at 87a-91a. The Todd Affidavit describes the

types of records it obtains during an investigation, including “records from agencies,

witnesses, and other sources.” R.R. at 88a. OIG will “review the records for

information related to the complaint or matter being investigated; conduct interviews

of witnesses and subjects of the investigation; conduct on-site inspections or

surveillance; and, conduct other traditional investigative activities as necessary to

obtain evidence relating to the complaint or matter being investigated.” R.R. at 88a-

89a.

With regard to the investigation of the Reissued RFP in this matter, OIG

reviewed all documents obtained from DHS and from other witnesses or sources.

19

R.R. at 89a-90a. The documents relate to communications by or between DHS and

OIG relating to the RFPs, including correspondence. R.R. at 90a. The Todd

Affidavit states that disclosure of the responsive records would reveal information

regarding the institution, progress, or result of the investigation. R.R. at 90a.

“Allowing the unnecessary disclosure of this information would impair the OIG

Investigation and future investigations because it discourages individuals from

providing information.” R.R. at 90a. The sum of these details shows that the

requested documents satisfy the elements needed to qualify as exempt noncriminal

investigation documents.

UnitedHealthcare asserts that DHS shifted its position and abandoned

any reliance on the use of the noncriminal investigation exemption to protect the

nine responsive emails. Petitioner’s Brief at 16. In support, UnitedHealthcare refers

to the Supplemental Affidavit of Slabonik and the Bankes Affidavit, which make no

reference at all to the noncriminal investigation exemption. See R.R. at 134a-36a,

144a-45a. However, these affidavits were offered in response to OOR’s request for

additional evidence and clarification regarding Items (a) through (g); they do not

pertain to the Items (h) and (i) of the Request. See R.R. at 133a-34a.

OOR asked DHS to provide a supplemental affidavit for Bankes

pertaining specifically to Items (h) and (i) to support DHS’s use of the noncriminal

investigation exemption with regard to the nine emails. R.R. at 172a-73a. In the

Supplemental Affidavit offered, Bankes clarified that the noncriminal investigation

exemption of the RTKL applied to nine emails responsive to Items (h) and (i). R.R.

at 172a, 177a-78a. She explained that the emails are correspondence from OIG to

DHS legal counsel regarding OIG’s investigation relating to the RFPs in question.

R.R. at 177a. Contrary to UnitedHealthcare’s assertions, DHS never wavered from

20

its position that the noncriminal investigation exception of the RTKL protected

documents responsive to Items (h) and (i) from disclosure. Thus, OOR properly

concluded that DHS’s affidavits constituted sufficient evidence to withhold these

records.

IV. Conclusion

For the above-stated reasons, we conclude that DHS’s interpretation of

UnitedHealthcare’s Request was reasonable. OOR’s inclusion of two immaterial

statements did not render its decision arbitrary and capricious. DHS sufficiently

proved that nine emails exchanged between DHS and OIG were exempt under the

noncriminal investigation exception. Thus, we affirm OOR’s final determination in

this regard.

However, with regard to the records responsive to Items (a), (c), (d),

(e), (f) and (g) of the Request, DHS’s affidavits, standing alone, are not sufficient to

support the asserted exemptions. Thus, we vacate this portion of OOR’s final

determination and remand for the production of an exemption log of the documents

withheld. OOR shall reconsider the applicability of DHS’s proffered exemptions

under Section 708(b)(26) of the RTKL and issue a new determination as to whether

the documents are protected from disclosure.

Accordingly, we affirm in part and vacate in part and remand to OOR

for further proceedings consistent with this opinion.

MICHAEL H. WOJCIK, Judge

Judge Fizzano Cannon did not participate in the decision of this case.

21

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

UnitedHealthcare :

of Pennsylvania, Inc., :

:

Petitioner :

:

v. : No. 824 C.D. 2017

:

Pennsylvania Department :

of Human Services, :

:

Respondent :

ORDER

AND NOW, this 31st day of May, 2018, the Final Determination of the

Office of Open Records (OOR), dated May 22, 2017, is AFFIRMED IN PART and

VACATED IN PART and this matter is REMANDED to OOR in accordance with

the foregoing opinion. On remand, OOR shall: (1) direct the Respondent

Pennsylvania Department of Human Services (DHS) to supplement the certified

record with an exemption log for records responsive to Items (a), (c), (d), (e), (f) and

(g) of the February 7, 2017, Right-to-Know Law (RTKL)1 request of

UnitedHealthcare of Pennsylvania, Inc.; (2) reconsider the applicability of DHS’s

proffered exemptions after review of the exemption log; and (3) issue a new

determination as to whether the records are protected from disclosure on a priority

basis.

Jurisdiction is RELINQUISHED.

__________________________________

MICHAEL H. WOJCIK, Judge

1

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