UnitedHealthcare of PA, Inc. v. DHS (OOR)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

UnitedHealthcare of Pennsylvania, Inc., :

:

Petitioner :

:

v. : No. 245 C.D. 2021

: Argued: February 7, 2022

Department of Human Services :

(Office of Open Records), :

:

Respondent :

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE WOJCIK FILED: December 15, 2022

In this appeal, UnitedHealthcare of Pennsylvania (United) petitions for

review of the Final Determination of the Office of Open Records (OOR) denying its

appeal of its request for records from the Pennsylvania Department of Human

Services (DHS) under the provisions of the Right-to-Know Law (RTKL).1 After

careful review, we affirm.

I.

In order to understand the claims raised in the instant appeal, a brief

recounting of a number of related cases is necessary. This Court has recently noted:

1

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

[The HealthChoices Medicaid (HealthChoices)

Program] is Pennsylvania’s mandatory managed care

program for physical health services to Medicaid

participants. Managed care providers (MCOs) administer

the HealthChoices Program in five Pennsylvania zones -

Northeast, Southeast, Lehigh-Capital, Northwest, and

Southwest. [DHS] contracts with multiple MCOs to

administer HealthChoices Program benefits and services

in each zone. United is one of those MCOs.

***

In September 2015, [DHS] issued Request for

Proposals (RFP) 06-15 for new contracts for

administration of the HealthChoices Program in all five

zones. United submitted a proposal for all five zones.

However, [DHS] did not select United to negotiate for new

contracts.

United claim[ed that DHS] stated that in evaluating

applications under RFP 06-15, it applied what it called a

“heritage factor” in evaluating the proposals by all

applicants. See Aetna Better Health of P[ennsylvani]a,

Inc. v. Dep[artmen]t of Hum[an] Serv[ice]s (Pa. Cmwlth.,

No. 351 M.D. 2016, filed July 19, 2016), slip op. at 4-5[.]

[DHS] applied the heritage factor to favor any existing

contractor MCO having at least a 25% market share of

Medicaid participants, reasoning that the disruption likely

to arise from cessation of such an applicant’s services

would outweigh some shortfall in the rest of the

applicant’s evaluation scores. Id. However, [DHS] did

not disclose in the RFP that it would be applying the

heritage factor as part of its evaluation process.

Another applicant, Aetna Better Health of

Pennsylvania, Inc. (Aetna), filed a bid protest alleging the

heritage factor was a secret criterion used to deprive Aetna

of new contracts and to favor other MCOs despite Aetna’s

higher proposal scores. [DHS] responded by asserting that

Aetna could not protest based on that issue. Aetna then

filed a petition for review. This Court enjoined the RFP

06-15 procurement and ordered that if [DHS] chose to

review Aetna’s bid protest, that review should be by an

2

independent hearing officer not employed by [DHS] and

not connected to the RFP. See Aetna Better Health, slip

op. at 32.

[DHS] then withdrew RFP 06-15 and reissued it as

RFP 06-15 (Reissued). United again submitted a proposal.

Whether [DHS] applied the heritage factor again is

unclear. However, United and other applicants filed bid

protests to RFP 06-15 (Reissued), claiming that [DHS] had

again applied the heritage factor in a manner designed to

favor the MCOs that previously received contracts with

[DHS], and that [DHS] had secret discussions with another

MCO about modifying its bid proposal in order to pass

[DHS’s] readiness review procedure. [DHS] denied the

bid protests. This Court reversed [DHS], concluding that

discussions with MCOs about bid modifications and

readiness review violated the RFP and the Commonwealth

Procurement Code (Procurement Code)[2] because only

[DHS’s] designated Issuing Officer, Karen Kern [(Kern)],

may engage in such discussions. See UnitedHealthcare of

P[ennsylvani]a, Inc. v. Dep[artmen]t of Human Serv[ice]s

(Pa. Cmwlth., No. 790 C.D. 2017, filed Apr[il] 10, 2018),

slip op. at 27[.]

***

In October 2019, [DHS] issued [Request for

Applications 07-19 (RFA)] pursuant to the Procurement

Code seeking applications for new contracts to administer

the HealthChoices Program. United submitted an

application for all five zones. In July 2020, [DHS] notified

United that it had selected United for negotiations only in

the Southeast zone. United requested a debriefing as

provided under the RFA and the Commonwealth’s

Procurement Handbook.

United filed a series of bid protests, which were

later consolidated. On February 17, 2021, the [Secretary

of Human Services (Secretary)] issued the Final

Determination denying United’s bid protests. United filed

2

62 Pa. C.S. §§101-2311.

3

a petition for review in this Court. Several competing

applicants under the RFA [] intervened in th[e] matter.

UnitedHealthcare of Pennsylvania, Inc. v. Department of Human Services (Pa.

Cmwlth., No. 165 C.D. 2021, filed November 17, 2021), slip op. at 2-4 (footnotes

omitted). Ultimately, this Court affirmed the Secretary’s Final Determination

denying United’s bid protests under the RFA and the Procurement Code. Id.

II.

With respect to the instant appeal, on September 18, 2020, United filed

a request with DHS under the RTKL (Second Request)3 seeking the following

relevant documents: (1) communications with any applicant related to the RFA; (2)

any documents or communications related to the readiness-review process described

in the RFA; (3) any documents or communications related to DHS’s decision to

extend the incumbent HealthChoices Program for up to two years; (4) any

documents or communications, both internal and external, related to debriefing

requests by any RFA applicant; (5) any documents or communications, both internal

and external, related to Contractor Partnership Program (CPP) submittals under the

RFA, including copies of each applicants’ CPP submittal and any review or

assessment of such submittals by DHS; (6) any documents or communications

between DHS and any corporate reference for an applicant under the RFA; and (7)

any documents produced by DHS since July 2, 2020, in response to a RTKL request

3

United had submitted a prior request with DHS under the RTKL (First Request). United’s

appeal with respect to the proceedings involving the First Request is docketed in this Court at No.

1117 C.D. 2020. See UnitedHealthcare of Pennsylvania, Inc. v. Pennsylvania Department of

Human Services (Office of Open Records) (Pa. Cmwlth., No. 1117 C.D. 2020, filed December 15,

2022). The instant appeal and that appeal were not consolidated, but were argued seriately before

this Court.

4

by any organization that also submitted an application in response to the RFA. See

OOR Docket No. 2020-2750 Exhibit 1 at Exhibit A.

On November 2, 2020, DHS responded to the Second Request. For

Item 1, DHS granted the request in part and denied it in part. DHS provided copies

of communications with any applicant since July 2, 2020, but redacted proposal and

evaluation information that is exempt under Section 708(b)(26) of the RTKL, and

personal identification information that is exempt under Section 708(b)(6)(i)(A).

OOR Docket No. 2020-2750 Exhibit 1 at 16-17.

With respect to Item 2, DHS noted that the readiness-review process

had not yet begun because of pending procurement protests, but it would provide

responsive records with redacted personal identification information under Section

708(b)(6)(i)(A); redacted predecisional deliberations that are exempt under Section

708(b)(10)(i)(A); redacted information subject to the attorney-client privilege that is

excluded from the definition of a “public record” under Section 102 of the RTKL;

and information that is excluded under the attorney work-product doctrine.4 OOR

Docket No. 2020-2750 Exhibit 1 at 17.

With respect to Item 3, DHS stated that, after a reasonable search of its

records, it did not have the requested records in its possession or under its custody

or control. OOR Docket No. 2020-2750 Exhibit 1 at 17-18.

With respect to Item 4, DHS granted the Second Request in part and

denied it in part, redacting: proposal and evaluation information under Section

708(b)(26); personal identification information under Section 708(b)(6)(i)(A);

4

65 P.S. §67.102. Section 102 defines “public record,” in relevant part, as “[a] record,

including a financial record, of a Commonwealth or local agency that . . . is not protected by a

privilege.” In turn, Section 102 defines “privilege,” in pertinent part, as “[t]he attorney-work

product doctrine, the attorney-client privilege, . . . or other privilege recognized by a court

interpreting the laws of this Commonwealth.” Id.

5

predecisional deliberations under Section 708(b)(10)(i)(A); information subject to

the attorney-client privilege under Section 102; and information subject to the

attorney work-product doctrine under Section 102. OOR Docket No. 2020-2750

Exhibit 1 at 18.

With respect to Item 5, DHS granted the Second Request in part and

denied it in part, noting that information regarding the CPP was provided during the

Pre-Application Conference for the RFA and that the PowerPoint presentation is

available in the eMarketplace as part of Addendum 3. OOR Docket No. 2020-2750

Exhibit 1 at 18-19. DHS also explained that CPP submittals are part of the

applications submitted in response to the RFA so they are exempt under Section

708(b)(26) until the award of the contract. Id. at 19.

With respect to Item 6, DHS granted in part and denied in part,

redacting proposal information and evaluation documents under Section 708(b)(26),

and personal identification information under Section 708(b)(6)(i)(A). OOR Docket

No. 2020-2750 Exhibit 1 at 19.

With respect to Item 7, DHS granted the request, interpreting it as

asking for the exact documents as they were produced in response to RTKL requests

because the Second Request states, “any documents produced,” and many of the

records were redacted when given to the requesters. OOR Docket No. 2020-2750

Exhibit 1 at 19. On December 11, 2020, DHS notified United that the responsive

records would be released in two batches, and the first batch was provided to United

on December 15, 2020.

On December 30, 2020, United appealed DHS’s response to OOR

challenging DHS’s redactions in Items 1, 2, 4, and 6, and asserting that DHS was

required to provide an exemption log or some other itemization of the withheld

6

information. OOR Docket No. 2020-2750 Exhibit 1 at 2, 3-4.5 On January 13, 2021,

United sent a submission to OOR reiterating that the appeal is specific to the

redactions within the records that DHS provided in response to the Second Request.

United also withdrew any portion of its appeal that related to information that is trade

secrets or confidential and proprietary information from other parties, and withdrew

the appeal as to application materials submitted by any applicant.

On January 19, 2021, DHS submitted a position statement reiterating

its grounds for denial and submitted the affidavits of Kern;6 Andrea Bankes; Barry

5

OOR subsequently granted the applications for Direct Interest Participant status in the

appeal of other applicants, including Geisinger Health Plan, AmeriHealth Caritas Health Plan, and

UPMC for You, Inc..

6

In relevant part, Kern’s affidavit restates the information regarding the RFA’s Evaluation

Committee, and that negotiations had not yet commenced and DHS had not yet awarded an

agreement as provided in her prior affidavit. See OOR Docket No. 2020-2750 Exhibit 6 at 22-24.

With respect to Items 1, 4, and 6 of United’s Second Request, the affidavit states the following, in

pertinent part:

27. I responded to and interpreted the request in [Items] 1, 4, and 6

to encompass records that include information and portions of the

[a]pplicants’ applications to fulfill [DHS’s] needs explained in [the

RFA].

a. Specifically, the communications between [DHS] and any

[a]pplicant related to [the RFA] since July 2, 2020, including

documents or communications related to debriefing

requests, and bid protests contain parts and information from

an [a]pplicant’s proposal and sets forth plans and

information for consideration to fulfill the service needs of

[DHS].

b. Documents and communications responsive to [Item] 6

are documents and communications between [DHS] and

corporate references that reflect information regarding each

[a]pplicant’s corporate reference as provided in the

(Footnote continued on next page…)

7

applications and contain information of communications

with those references that was requested as part of the

application process and used in the evaluation process. . . .

28. I responded to and interpreted [United’s Second Request] in

[Item] 4 to encompass internal deliberative documents and

communications relating to debriefing requests by [a]pplicants

about [the RFA].

a. Specifically, documents and communications responsive

to [Item] 4 are internal to [DHS], reflect the deliberations of

[DHS] staff relating to debriefings, and occur prior to the

requested debriefings.

29. I responded to and interpreted the request in [Items] 1, 4, and 6

to encompass records that include records of the evaluation

committee members.

a. Documents responsive to [Items] 1 and 4 include

debriefing documents which contain the evaluation

committee members’ notes regarding the strengths and

weaknesses of the [a]pplicants.

b. Documents responsive to [Item] 6 are documents and

communications between [DHS] and corporate references

that reflect information regarding each [a]pplicant’s

corporate reference as provided in the applications and

contain information of communications with those

references that was requested as part of the application

process and used in the evaluation process. . . .

30. I responded to and interpreted the request in [Item] 4 to

encompass communications with [DHS’s] Legal office. The

communications were sent seeking advice regarding requests for

debriefings.

31. The documents responsive to [Items] 1, 4, and 6 in the [Second

R]equest also contained personal email addresses, cell phone

numbers, and personal telephone numbers.

(Footnote continued on next page…)

8

Bowman, its Managed Care Operations Chief and Director of its Division of

Monitoring and Compliance;7 and Sallie Rodgers, its Deputy Chief Counsel for the

a. Under the RTKL, personal identification information is

exempt from disclosure. 65 P.S. §67.708(b)(6).

b. Furthermore, third parties have a [c]onstitutional right to

privacy and reputation. Personal information is exempt

from disclosure pursuant to a [c]onstitutional right of

privacy.

***

33. Some of the documents responsive to the [Items] in the request

contained application information. My understanding of [S]ection

708(b)(26)[] is that, as of this date, none of the applications that

were submitted in response to [the RFA] are “public records.”

Therefore, none of the documents that contain any part of the

applications are “public records.”

OOR Docket No. 2020-2750 Exhibit 6 at 24-25 (citations omitted).

7

Bowman’s affidavit states the following, in pertinent part:

8. Readiness [r]eview is the process by with [the Office of Medical

Assistance Programs (OMAP)] determines that MCOs that were

determined successful applicants through the procurement process

comply with all the elements of the HealthChoices Physical Health

standard MCO Agreement in both an operational capacity and

Management Information Systems (MIS).

***

11. Since formal protests were filed related to the RFA[,] OMAP

did not commence with the [r]eadiness [r]eview process.

12. Some of the responsive records contain internal discussions

between OMAP staff about proposed [DHS] actions.

(Footnote continued on next page…)

9

Office of General Counsel.8 That same day, United provided a supplemental

statement asserting that DHS provided another batch of records on January 13, 2021,

13. These discussions occurred before a final course of action was

decided.

14. These documents and communications are between internal

DHS staff, including legal counsel, occurring before a specific

action, deliberative about that action.

15. Therefore, it is my understanding that the RTKL’s predecisional

deliberation exemption protects these documents and

communications from disclosure. 65 P.S. §67.708(b)(10)(i)(A).

16. Some correspondence responsive to [Item] 2 also contains

communications with DHS counsel preparing for litigation.

17. The communications contain the thoughts and strategy of DHS

counsel in representing OMAP in bid protest litigation.

18. The documents responsive to [Item] 2 in the [Second R]equest

also contained personal email addresses, cell phone numbers, and

personal telephone numbers.

a. Under the RTKL, personal identification information is

exempt from disclosure. 65 P.S. §67.708(b)(6).

b. Furthermore, third parties have a [c]onstitutional right to

privacy and reputation. Personal information is exempt

from disclosure pursuant to a [c]onstitutional right.

OOR Docket No. 2020-2750 Exhibit 6 at 16-17.

8

Rodgers’ affidavit states the following, in pertinent part:

1. I am an attorney and work for the Office of General Counsel

[(OGC)], within [DHS]. Lara Antonuk [(Antonuk)] is an attorney

and works for OGC, within [DHS].

(Footnote continued on next page…)

10

2. I became involved in advising [DHS] staff pertaining to [the

RFA], including but not limited to, its issuance, selections for

negotiations, debriefings and ensuing protests. At various times,

[]Antonuk, has been involved with advising [DHS] staff pertaining

to [the RFA] including but not limited to its issuance, selections for

negotiations, debriefings and ensuing protests.

3. I was notified of [United’s Second Request] that included two

[items] requesting documents or communications pertaining to the

following:

• [Item] 2: Any documents or communications related to

the readiness[]review process described in the [RFA]

created or revised since July 2, 2020; and

• [Item] 4: Any documents or communications, both

internal and external, related to debriefing requests by any

RFA[] applicant.

4. I interpreted these two [items] to include attorney-client

correspondence and attorney written work, which is protected from

disclosure pursuant to the attorney-client privilege and attorney

work-product doctrine. See 65 P.S. §67.102 (definition of

“privilege”).

5. My email correspondence and work products are encompassed

by this request. Email correspondence and work products by

[]Antonuk are also encompassed by this request.

***

10. [DHS] staff routinely interact with OGC attorneys. The mutual

understanding of [DHS] staff and the OGC attorneys is that legal

advice provided by the attorneys to the staff is confidential and

subject to the attorney-client privilege.

11. There are records encompassed by [United’s Second Request]

that were sent by [DHS] staff to an OGC attorney, and those sent by

an OGC attorney, and I can say without any doubt that[]

(Footnote continued on next page…)

11

and argued that its objections to the second batch of records that DHS provided

should be included in the appeal.9

On February 12, 2021, OOR issued a Final Determination disposing of

United’s appeal of DHS’s response to its Second Request. Regarding DHS’s

redaction of information from Items 1, 4, and 6 based on the Section 708(b)(26)

exemption, OOR stated:

a. None of the messages was sent for the purpose of

committing a crime.

b. None of the messages was sent for the purposes of

committing a tort.

c. The messages contain requests from [DHS] staff to OGC

counsel to obtain legal advice, and from OGC counsel to

[DHS] staff providing legal advice and work product,

preparing for litigation pertaining to the procurement

process, debriefings and bid protests, and assisting in the

preparation of bid protest responses.

12. None of these communications, to or from an OGC attorney, set

forth a waiver of the attorney-client privilege.

13. Records responsive to the above requests also contain attorney-

work product.

a. The records were authored by an attorney in the course of

his or her professional duties, sent to another attorney or

[DHS] staff, and contain the written work, the mental

impressions, theories, and strategies of an attorney.

OOR Docket No. 2020-2750 Exhibit 6 at 19-20.

9

Ultimately, OOR denied United’s request, explaining that “in the appeal, [United]

indicates that [it] is aware of a rolling production schedule, where [DHS] would provide the records

in separate batches,” and that, “[t]herefore, this appeal is limited to the records that [United] could

review at the time of the appeal, for the purpose of challenging the redactions.” OOR Docket No.

2020-2750 Exhibit 12 at 5.

12

Here, [DHS] provided records responsive to Items

1, 4, and 6, and made redactions to prevent disclosure of

information related to proposal information and evaluation

committee records. The records sought are not the entire

applications themselves, but communications, which

include documents that contain evaluation committee

member notes, and records that would disclose

information related to an applicant’s references, which are

part of the application process. Further, as asserted by

several of the direct interest participants, the [Second]

Request seeks records that contain the “[]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. . . .” See 65

P.S. §67.708(b)(26)[.] Based on the affirmation of []Kern,

[DHS] has proven that it properly redacted records

responsive to Items 1, 4, and 6 as they would disclose

information associated with [the RFA], which has not been

awarded.

OOR Docket No. 2020-2750 Exhibit 12 at 11-12 (citations omitted).

Regarding DHS’s redaction of information from Items 2 and 4 based

on the Section 708(b)(10)(i)(A) predecisional deliberations exemption, OOR stated:

Here, the [Second] Request, in Items 2 and 4, seeks

records related to the “readiness[]review” process and

debriefing documents related to [the RFA]. [DHS],

through the attestation of []Bowman regarding Item 2 and

[]Kern regarding Item 4, state that responsive records were

redacted to prevent the disclosure of internal discussions

related to deliberations that took place prior to taking an

action. [DHS] specifically states that Item 2 contains

redactions that were made to prevent disclosure of

communications preparing for litigation and between

[DHS] staff that occurred prior to the readiness[]review

process and are deliberative in nature as they discuss

proposed [DHS] actions. Item 4 redactions were made

because the requested debriefing records contained

internal [DHS] communications occurring prior to the

sought debriefing, reflecting the deliberations of [DHS]

staff.

13

Therefore, based on the evidence provided, [DHS]

has proven that a portion of email records were properly

redacted as they are related to internal, predecisional

deliberations and are exempt from disclosure. See 65 P.S.

§67.708(b)(10)(i)(A).

OOR Docket No. 2020-2750 Exhibit 12 at 14.

Regarding DHS’s redaction of information from Items 1, 2, 4, and 6

based on the Section 708(b)(6) personal identification information exemption, OOR

stated:

Here, []Kern attests that redactions were made to

records responsive to Items 1, 4, and 6 where there was

personal identification information, such as email

addresses, cell phone numbers and personal telephone

numbers. Additionally, []Bowman attests that redactions

were made within records responsive to Item 2 for

personal identification information, such as email

addresses, cell phone numbers and personal telephone

numbers.

Therefore, based on the evidence provided, [DHS]

properly redacted personal identification information from

the records.

OOR Docket No. 2020-2750 Exhibit 12 at 15.

Regarding DHS’s redaction of information based on the Section 102

attorney-client privilege and attorney work-product doctrine, citing Rodgers’

affidavit, OOR stated:

Here, [DHS] has responsive records in its

possession that were either sent or received as part of an

agreement where [DHS] is a client for the attorneys who

provided legal advice. The communications that were

redacted are between [DHS] and its attorneys regarding

legal advice, opinions of law, legal services or advice in a

legal matter and the privilege has not been waived by

either party.

14

Additionally, [DHS] has proved that the records are

exempt as attorney work[]product and properly redacted

where they contained mental impressions, theories and/or

strategies of an attorney that were sent in the course of

professional duties.

[DHS] has provided sufficient evidence to prove

that the redacted records are protected by the attorney-

client and attorney work-product doctrines.

OOR Docket No. 2020-2750 Exhibit 12 at 18. Accordingly, OOR’s Appeals Officer

issued an order denying United’s appeal of DHS’s response to United’s Second

Request. Id. at 18-19. United then filed the instant appeal10 of OOR’s Final

Determination.

III.

United’s sole claim in this appeal is that OOR’s Final Determination

should be reversed because “United appealed DHS’s decision to withhold and redact

records on the grounds that DHS did not adequately explain its withholdings and

redactions, including its failure to catalogue each redaction and withheld document”

and “OOR failed to address this issue.” United’s Brief of Petitioner at 4.11 However,

as this Court has explained:

10

“In an appeal under the RTKL from a final determination of [] OOR, the review exercised

by this Court is plenary with respect to both questions of fact and law. This Court reviews []

OOR’s orders independently and may substitute its own findings of fact for those of [] OOR.”

Payne v. Pennsylvania Department of Health, 240 A.3d 221, 225 n.6 (Pa. Cmwlth. 2020) (citation

omitted).

11

Pa. R.A.P. 2111(a)(4) provides that “[t]he brief of the appellant . . . shall consist of the

following matters, separately and distinctly entitled and in the following order: . . . Statement of

the questions involved.” In turn, Pa. R.A.P. 2116(a) states, in relevant part:

The statement of the questions involved must state concisely the

issues to be resolved, expressed in the terms and circumstances of

(Footnote continued on next page…)

15

Under the RTKL, 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)[.] A

preponderance of the evidence is a finding “that the

existence of a contested fact is more probable than its

nonexistence.”

An agency may present sufficient evidence by the

submission of affidavits.

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.

However, conclusory affidavits, standing alone, will not

satisfy an agency’s burden of proof under the RTKL.

Moreover, the affidavit must be specific enough to permit

OOR or a reviewing court to ascertain whether the claimed

exemption applies to the records.

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.

Such a log “typically lists the date, record type, author,

the case but without unnecessary detail. The statement will be

deemed to include every subsidiary question fairly comprised

therein. No question will be considered unless it is stated in the

statement of questions involved or is fairly suggested thereby.

Accordingly, to the extent that United raises issues in its appellate brief that are not “fairly

suggested” by the quoted Statement of Questions Involved, they are waived for purposes of appeal.

See, e.g., Mooney v. Greater New Castle Development Corp., 510 A.2d 344, 348 n.4 (Pa. 1986)

(“The Superior Court refused to decide this question because it was not set forth in the statement

of questions involved as required by Pa. R.A.P. 2116; and, therefore, it was not properly before

that court. For this reason, we will not consider the question.”).

16

recipients, and a description of the withheld record. . . .”

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.” “An index, even

one containing minimal description, offers a tool for a

fact-finder reviewing corresponding records.”

UnitedHealthcare of Pennsylvania, Inc. v. Pennsylvania Department of Human

Services, 187 A.3d 1046, 1059 (Pa. Cmwlth. 2018) (citations and footnote omitted).

In fact, this Court has observed:

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. However, where an agency sufficiently

explains the basis for nondisclosure through an

affidavit, a log or in camera review may not be

necessary.

Id. at 1060 (citations omitted and emphasis added).

Indeed, in a similar circumstance, this Court noted:

While a claim of attorney-client privilege can be

denied if the party asserting it does not provide a privilege

log or explain its claim in any other way, a privilege log

was not necessary in this case. First, the [school d]istrict

set forth a description of the emails it was withholding in

the affidavit of its Open Records Officer that it attached to

its petition for review filed with the trial court. Second,

the [school d]istrict stated that it was withholding all 19

pages of the emails based on an exception in the RTKL

and it specifically notified [the r]equester that the

documents were exempt from disclosure pursuant to

attorney-client privilege. Therefore, the trial court did not

err by not requiring the [school d]istrict to provide a

privilege log.

Chambersburg Area School District v. Dorsey, 97 A.3d 1281, 1289 (Pa. Cmwlth.

2014) (citation omitted and emphasis in original).

17

Likewise, as extensively and exhaustively outlined above, the affidavits

that DHS submitted in support of the redactions and nondisclosures contained the

requisite specificity and were not conclusory, thereby distinguishing this case from

those relied upon by United in its brief. Moreover, the affidavits permitted OOR,

and permit this Court, to conduct the requisite review of DHS’s response to United’s

Second Request. See, e.g., UnitedHealthcare, 187 A.3d at 1059 (“Absent evidence

of bad faith, the veracity of an agency’s submissions explaining reasons for

nondisclosure should not be questioned.”). As a result, OOR did not err or abuse its

discretion in failing to require DHS to provide a privilege or exemption log or in

failing to conduct in camera review of the requested records.

Thus, United’s claim that DHS did not adequately explain its

withholdings and redactions and failed to catalogue each redaction and withheld

document is patently without merit. Furthermore, OOR’s purported failure to

address this issue is not a basis upon which its Final Determination will be reversed.12

Accordingly, OOR’s Final Determination is affirmed.

MICHAEL H. WOJCIK, Judge

Judge Wallace did not participate in the decision of this case.

12

See, e.g., Garner v. Pennsylvania Human Relations Commission, 16 A.3d 1189, 1200

(Pa. Cmwlth. 2011) (“[R]eversible error requires the determination ‘must not only be erroneous,

but also harmful or prejudicial to the complaining party.’ D.Z. v. Bethlehem Area School District,

2 A.3d 712, 726 (Pa. Cmwlth. 2010). ‘[A]n order of an administrative agency will not be disturbed

for harmless error.’ Id. at 725-26.”); Sturpe v. Unemployment Compensation Board of Review,

823 A.2d 239, 242 (Pa. Cmwlth. 2003) (holding that errors contained in the Board’s order as being

“harmless” where they were found to “have no effect on this outcome”); see also Sloan v. Workers’

Compensation Appeal Board (Children’s Hospital of Philadelphia), 124 A.3d 778, 786 n.8 (Pa.

Cmwlth. 2015) (“This Court may affirm on grounds other than those relied on below where other

grounds for affirmance exist.”) (citations omitted).

18

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

UnitedHealthcare of Pennsylvania, Inc., :

:

Petitioner :

:

v. : No. 245 C.D. 2021

:

Department of Human Services :

(Office of Open Records), :

:

Respondent :

ORDER

AND NOW, this 15th day of December, 2022, the Final Determination

of the Office of Open Records, dated February 12, 2021, at Docket No. AP 2020-

2750, is AFFIRMED.

__________________________________

MICHAEL H. WOJCIK, Judge