Commonwealth v. Eiseman

CONCURRING AND DISSENTING OPINION BY

Judge McCULLOUGH.

In this Righb-to-Know Law (RTKL)1 case, James Eiseman, Jr. and the Public Interest Law Center of Philadelphia (Re-questers) seek rates set by contracts entered into between the Pennsylvania Department of Public Welfare (DPW) and various private entities as they pertain to the administration of the dental care aspect of the Medicaid2 program and the distribution of public funds to implement the program and pay dental care providers for their services.

DPW administers Medicaid, and through the HealthChoices Program, provides dental care to Medicaid recipients. No one disputes that the Medicaid funds for the HealthChoices Program derive from federal and state funds. Rather than contract directly with dental providers to establish a payment rate for their services, DPW delegates its duty to implement Medicaid dental coverage by executing a series of contracts with “middlemen” who eventually contract with dental providers and negotiate payment terms.

Specifically, within the geographic area covering Requester’s request, DPW contracts with five different Managed Care Organizations (MCOs). DPW pays the MCOs a negotiated rate, a “Capitation Rate,” and the MCOs are obligated to establish and maintain a provider network ensure access to dental care for Medicaid beneficiaries. In this regard, DPW delegates its governmental duties to the MCOs, and the MCOs accept these undertakings. Pursuant to the HealthChoices Agreement, the MCOs expressly agree:

to participate in the [Medicaid program] and to arrange for the provision of those medical and related services essential to the medical care of those individuals being served, and to comply with all federal and Pennsylvania laws generally and specifically governing participation in the [Medicaid program.] The [MCO] agrees that all services provided hereunder must be provided in the manner prescribed by 42 U.S.C. § 300e(c). The [MCO] agrees to comply with all applicable rules, regulations, and Bulletins promulgated under such laws including, but not limited to, 42 U.S.C. § 300e; 42 U.S.C. § 1396 et seq; 62 P.S. § 101 et seq.; 42 CFR Parts 431 through 481 and 45 CFR Parts 74, 80, and 84, and [DPW’s] regulations....

(Reproduced Record (R.R.) at 715a.)

The MCOs, on behalf of DPW, then enter into subcontract agreements with business entities (Subcontractors). Pursuant to these agreements, the MCOs pay the Subcontractors a per-member, per-month rate, known as the “MCO Rate,” which ostensibly is drawn from the MCOs’ Capitation Rates. The Subcontractors, in turn, secure written agreements with and pay negotiated rates to the dental providers for services rendered to the MCOs’ enrollees.3 As a general proposition, the *1133MCOs and the Subcontractors are not obligated to contract with any willing dental provider. The rates paid to individual providers are not prescribed by law, but are determined in negotiations between the individual dental provider and the Subcontractors, and may vary from one provider to the next. See 42 C.F.R. § 438.12(a), (b)(2).

Notably, these “middlemen” (i.e., the MCOs and Subcontractors) are in the business of realizing marginal profit gains. For example, if an MCO is able to control costs within the level of the capitation revenue, then it would earn a profit; if not, the MCO would suffer a loss. Lukes v. Department of Public Welfare, 976 A.2d 609, 613 (Pa.Cmwlth.2009). Further, the rates paid by an MCO affect the Capitation Rate and payments DPW would make to the MCO in future years; a higher amount paid by the MCO correlates into a higher Capitation Rate payment by DPW to the MCO. Id. Ultimately, an increase in total Capitation Rate payments results in an increase to the total cost of the Medicaid program to DPW and the taxpayers of Pennsylvania. Id. at 613-14. In any event, the public funds originate with DPW, and no matter how many private entities the funds pass through, the funds end up in the hands of those performing the actual dental services and are the same funds that began with DPW. That is, public funds are used to pay for public dental insurance.

Although based on a different rationale, I join the Majority in its conclusion that the Capitation Rates negotiated between DPW and the MCOs are subject to disclosure. (Maj. op. at 1123-27.) I respectfully disagree with the Majority that the MCO Rates negotiated between the MCOs and the Subcontractors cannot be disclosed. In my view, the MCO Rates qualify as “financial records” under section 102 of the RTKL, 65 P.S. § 67.102, and pursuant to section 708(c) of the RTKL, 65 P.S. § 67.708(c), the exceptions contained in section 708(b) prohibiting disclosure are inapplicable. I further believe that as a result of the MCO Rates having obtained financial records status, the inquiry in this case regarding those rates is at an end; there is no independent exemption under the Pennsylvania Uniform Trade Secrets Act, 12 Pa.C.S. §§ 5301-5308, (Trade Secrets Act), because this body of law is already codified in sections 102 and 708(b)(ll) of the RTKL, 65 P.S. §§ 67.105, 708(b)(ll). Accordingly, and unlike the Majority, I would conclude that the Office of Open Records (OOR) did not err in ordering the disclosure of the MCO Rates.

“[T]he objective of the RTKL is to empower citizens by affording them access to information concerning the activities of their government.” Levy v. Senate of Pennsylvania, — Pa. -, -, 65 A.3d 361, 381 (2013) (internal quotation marks and citation omitted). When compared to the former Right to Know Act of 1957 (Right to Know Act),4 the current RTKL, enacted in 2008, “demonstrate[s] a legislative purpose of expanded government transparency through public access to documents.” Id. at -, 65 A.3d at 381. “[CJourts should liberally construe the RTKL to effectuate its purpose of promoting access to official government information in order to prohibit secrets, scrutinize actions of public officials, and make public officials accountable for their actions.” Id. (internal quotation marks and citation omitted).

From a requester’s standpoint, the most potent provisions of the RTKL are argu*1134ably sections 102 and 708(c) pertaining to financial records. In relevant part, a “financial record” is defined in section 102 of the RTKL as “any account, voucher, or contract dealing with ... the receipt or disbursement of funds by an agency.” Section 708(c) of the RTKL permits financial records to be redacted in certain enumerated circumstances, but, as the Majority points out, none of these circumstances are present in this case. (Maj. op. at 1124, 1125.) Further, section 708(c) of the RTKL states that all of the 30 exemptions from disclosure contained in subsection (b) “shall not apply to financial records.... ” Therefore, our legislature placed paramount significance in financial records, deeming them to be prima facie public records that should be disclosed to the public, with the sole exception that disclosure would violate the nonpublic nature of a document as provided for “in Federal or State law, regulation or judicial order or decree.” Section 306 of the RTKL, 65 P.S. § 67.306.

The language defining a financial record in section 102 of the current RTKL is not foreign to our legislature or to this Court. In fact, section 1 of the former Right to Know Act employed identical language to define a “public record” as “any account, voucher, or contract dealing with ... the receipt or disbursement of funds by an agency....” Section 1 of the prior Right to Know Act, formerly 65 P.S. § 66.1. Remarkably similar to the current RTKL, the former Right to Know Act granted unrestricted access to a “public record,” with a few exceptions, including where disclosure was “prohibited, restricted or forbidden by statute law or order or decree of court....” Id. Consequently, the definition of a “financial record” under the current RTKL duplicates verbatim the definition of a “public record” under the former Right to Know Act, and the two terms embody functionally equivalent concepts.

“If the Legislature, in a later statute, uses the same language used in a prior statute which has been construed by the courts, there is a presumption that the language thus repeated is to be interpreted in the same manner such language had been previously interpreted when the court passed on the earlier statute.” Delaware County v. Schaefer, 45 A.3d 1149, 1155 (Pa.Cmwlth.2012) (en banc).

In Lukes, the requester sought contractual agreements, “Provider Agreements,” between an MCO and health care providers in order to ascertain the negotiated payment rates. In construing the verbiage delineating a “public record,” this Court concluded that the contractual agreements and payment rates constituted a “contract dealing with ... the receipt or disbursement of funds by an agency....” We reasoned, in pertinent part, as follows:

Our Supreme Court has concluded that the first category, i.e., documents dealing with the receipt or disbursement of funds, should be interpreted expansively.... This category of documents should be broadly construed and need only constitute records evidencing disbursement of government money....
Applying agency principals to the instant matter, we believe the Provider Agreements at issue are the product of the agency relationship between DPW and the [MCO]. The HealthChoices Agreement [ie., the contractual agreement between DPW and the MCO] constitutes a manifestation by DPW that the [MCO] shall administer the Health-Choices Program and the acceptance of the undertaking by the [MCO]. Since Pennsylvania’s [Medicaid] program must meet all requirements of the federal and state law in order to acquire funding, *1135DPW established strict controls in the HealthChoices Agreement....
Through Provider Agreements, the [MCO] agrees to pay hospital providers negotiated rates for medical services rendered to Medicaid enrollees....
In doing this, the [MCO] is fulfilling DPWs duties to administer the [Medicaid] program. Had DPW contracted directly with the hospitals to provide medical services, there would be no doubt that the Provider Agreements are public records subject to disclosure. While the HealthChoices Agreement between DPW and the [MCO] expressly states that the [MCO] is not to hold itself out as an agent or representative of DPW and that the relationship between the parties is that of independent contracting parties, the fact remains that the [MCO] is performing a duty that would ordinarily be handled by DPW. In essence, the [MCO] stands in the shoes of DPW in administering the Health-Choices Program. We, therefore, conclude that the Provider Agreements are the product of the agency relationship that exists between DPW and the [MCO],

976 A.2d at 621 and 623-24 (internal quotation marks, citations, and footnotes omitted). On this rationale, we concluded in Lukes that the provider agreements and payment rates evidenced the receipt and disbursement of public funds and, therefore, should be disclosed to the public.

Because this Court in Lukes interpreted language identical to that presently before this Court, and applied that language to facts indistinguishable from those currently before this Court, I find our reasoning in Lukes highly persuasive, if not binding, under principles of store decisis. Following Lukes, I would conclude that Requester’s request for MCO Rates is a request for “financial records” under section 102 of the RTKL because agency law dictates that the MCOs and Subcontractors stand in the shoes of DPW and receive and disburse public funds.

‘When our Court renders a decision on a particular topic, it enjoys the status of precedent. The danger of casually discarding prior decisions is that future courts may regard the new precedent as temporary as well.” Hunt v. Pennsylvania State Police, 603 Pa. 156, 164, 983 A.2d 627, 637 (2009). In order to pay due respect to this Court’s precedent, it is incumbent upon the Majority to provide a compelling reason to overrule Lukes, specifically explaining why that case was wrongly decided. (Maj. op. at 1127.)5 I do not believe the Majority accomplishes this task.

Without appreciating the fact that Lukes’ discussion of receipt and disbursement of funds concerns the same exact statutory language that this Court is now asked to interpret, the Majority cites case law that distinguished or declined to follow Lukes insofar as Lukes determined the extent to which records can be considered *1136to be within an agency’s control when a third party possesses them. (Maj. op. at 1125 n. 12, citing Honaman v. Lower Merion Township, 13 A.3d 1014, 1019-22 (Pa.Cmwlth.2011); In re Silberstein, 11 A.3d 629, 632 and n. 8 (Pa.Cmwlth.2011); Office of the Budget v. Office of Open Records, 11 A.3d 618, 621-22 (Pa.Cmwlth.2011)).6 In this regard, Lukes was obviously superseded by a change in statutory language. Section 1 of the former Right to Know Act defined a record, albeit vaguely, as “[a]ny document maintained by an agency, in any form, whether public or not....” In contrast, section 506(d)(1) of the RTKL now states that “[a] public record that 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 ... shall be considered a public record of the agency for purposes of this act.” 65 P.S. § 67.506(d)(1). However, and most importantly, there is no dispute that DPW possesses the requested documents in this case, (Maj. op. at 1123-24); consequently, the Majority’s reliance upon its cited case law to abrogate Lukes on a completely unrelated and separate point of law is misplaced. Nothing in our decisions in Honaman, In re Süberstein, or Office of the Budget question or otherwise undermine Lukes’ precedential value and holding that MCOs and related entities receive and disburse agency funds.7

The Majority also uses canons of statutory construction to construe the phrase, “any ... contract dealing with ... the receipt or disbursement of funds by an agency,” (emphasis added), in a manner that differs from that in Lukes. Emphasizing the word “by,” the Majority concludes that the MCO Rates are not funds disbursed “by an agency” because the funds are being passed between two private contracting entities — i.e., from the MCOs to the Subcontractors. (Maj. op. at 1126-27.) Without engaging in extensive grammatical discourse, I am not convinced with the Majority’s interpretation because it effectively renders the words “any,” “dealing,” and “disbursement” superfluous and without meaning, and also ignores the fact that the funds originate with DPW. See Concerned Citizens for Better Schools v. Brownsville Area School District, 660 A.2d 668, 671 (Pa.Cmwlth.1995) (“[W]hen-ever possible, the courts must interpret statutes to give meaning to all of their words and phrases so that none are rendered mere surplusage.”). Instead, I believe that section 102 of the RTKL is broad enough to include public funds that trickle down through contractor and subcontractor contracts (“any contract”) because these contracts nevertheless “deal” with, or simply pass along down the line, *1137the “disbursement of funds by an agency.” See, e.g., Associated Builders & Contractors, Inc. v. Pennsylvania Department of General Services, 747 A.2d 962, 965 (Pa.Cmwlth.2000) (interpreting “any contract dealing with receipt or disbursement of funds”) (concluding that “an agency may not shield a public document from disclosure by contracting with a third party that subsequently [disburses] the government funds. By paying through a third party, an agency does not change the character of those funds from public to private.”). In my view, there is no textual basis in the current RTKL to discard Lukes’ analysis on this point as obsolete or wrongly decided.

Relatedly, and in a cursory fashion, the Majority concludes: “That MCOs disbursed funds they received from DPW to their subcontractors does not render the MCOs mere conduits for public funds. Based on the language of the current RTKL, the funds lose their character as public funds once they leave an agency’s hands and enter the public sector.” (Maj. op. at 1127.)

Upon review, I am unable to locate any statutory language in the definition of financial records or the RTKL that supports the Majority’s position. And I cannot decipher how public funds designated for a public purpose become private funds when in the hands of a private party when that private party is obligated to use the funds for a public purpose. On comparison, I find our examination of this topic in Lukes more persuasive than that of the Majority:

There is no question that the Medicaid funds for the HealthChoices Program derive from federal and state funds. DPW argues, however, that once the public money is received by the [MCO], a private entity, the money belongs to the [MCO] and is private. Had the purpose of the money been simply to provide funding to private MCOs or HMOs ... we would agree that the money became private once in the hands of those entities and how the money was spent would not be subject to disclosure. However, that is not the case here. The purpose of the public money disbursed by DPW is to provide medically necessary services to Medicaid recipients. The [MCO] does not administer these services, but instead acts as an intermediary by contracting with provider hospitals to provide such services. Until the public funding reaches the intended Medicaid recipient, the money remains public. * * *
The Provider Agreements reflect the expenditure of public funds for the benefit of Medicaid beneficiaries. DPW cannot circumvent the disclosure of this money trail by contracting indirectly through ... MCOs or HMOs. Private entities that receive or control public funds have a duty to account for their handling of those funds. Disclosure of the Provider Agreements is the only way to ensure such accountability. To shield such documents from review would circumvent the public’s ability to determine how tax dollars are spent.

Lukes, 976 A.2d at 625 (emphasis added).

For all of these reasons, I would conclude that the MCO Rates and the agreements containing them are “financial records” for purposes of section 102 of the RTKL. As explained above, because the MCO Rates are financial records, the numerous exemptions contained in section 708(b) of the RTKL, including confidential proprietary information and trade secrets, are inapplicable.

Nonetheless, the Majority concludes in its discussion on Capitation Rates that the Trade Secrets Act, even though codified in *1138section 708(b)(ll) of the RTKL, is an independent and “stand-alone statutory basis for protection” from disclosure. (Maj. op. at 1124-25,1131). I do not agree.

Section 708(b)(ll) of the RTKL exempts from disclosure “[a] record that constitutes or reveals a trade secret,” but, pursuant to section 708(c), this exception “shall not apply to financial records.... ” Section 102 of" the RTKL defines a “trade secret” as follows:

“Trade secret.” Information, including a formula, drawing, pattern, compilation, including a customer list, program, device, method, technique or process that:
(1) derives independent economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and
(2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
The term includes data processing software obtained by an agency under a licensing agreement prohibiting disclosure.

Id.

The Trade Secrets Act defines a trade secret as follows:

“Trade secret.” — Information, including a formula, drawing, pattern, compilation including a customer list, program, device, method, technique or process that:
(1) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.
(2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

12 Pa.C.S. § 5802.

Minus the last clarifying sentence in section 708(b)(ll) of the RTKL, the definition of a trade secret in the RTKL and the Trade Secrets Act is identical. Although financial records may be exempt from disclosure where disclosure would “conflict with any other federal or state law,” 65 P.S. § 67.3101.1,8 our legislature expressed its clear intention to incorporate and codify the Trade Secrets Act into sections 102 and 708(b)(ll) of the RTKL. See Office of Governor v. Scolforo, 65 A.3d 1095, 1101—02 (Pa.Cmwlth.2013) (concluding that where our legislature expressed its intent to codify the common law deliberative process privilege into section 708(b)(10)(i) of the RTKL, the legislature demonstrated its intent to specifically exempt the common law deliberative process privilege from disclosure). Since the two concepts are one and the same, intermingled into a collective and inseparable whole, I do not believe that the trade secrets mentioned and defined in the RTKL in any way “conflicts” with the trade secrets under the Trade Secrets Act.

Our legislature expressly stated in section 708(c) of the RTKL that trade secrets are not an exception to disclosure of financial records. There is no conceivable basis upon which to conclude that the legislature intended the more generally applicable Trade Secrets Act to override and displace this specific provision of the RTKL. Indeed, it would be anomalous for our legislature to explicitly exclude trade secrets as an exception to disclosure of financial records in section 708(c) of the RTKL, while simultaneously implying that trade secrets *1139are an exception requiring disclosure of the same financial records in section 3101.1 of the RTKL. See Ling v. Department of Transportation, 79 A.3d 1, 5 (Pa.Cmwlth.2013) (“Given our holding that the Driveway Immunity Provision specifically confers DOT with statutory immunity, we need not determine whether an exception to sovereign immunity is applicable.... [I]t would be anomalous for our legislature to grant immunity in one statute and simultaneously abrogate that immunity in another statute.”). Therefore, where, as here, financial records are involved, I believe that section 708(c) of the RTKL trumps any notion of an independent exception for trade secrets under the Trade Secrets Act.

Accordingly, because the contracts containing the MCO Rates are financial records and no exception to disclosure is applicable to this case, I would affirm the OOR’s determination requiring DPW and the pertinent parties to disclose the MCO Rates. On these grounds, I respectfully dissent.

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

. For a general discussion on Medicaid program, see, e.g., Lukes v. Department of Public Welfare, 976 A.2d 609, 623 and n. 10 (Pa.Cmwlth.2009); Commonwealth v. Lubrizol Corp. Employee Benefits Plan, 737 A.2d 862, 869-70 (Pa.Cmwlth.1999); Oriolo v. Department of Public Welfare, 705 A.2d 519, 520 (Pa.Cmwlth.1998).

.In a very clear manner, the Majority charts these parties' relationship as follows: DPW-> MCOs-» Subcontractors-* Providers. The symbol denotes a contractual agreement, with their being a total of three different contracts.

. Act of June 21, 1957, P.L. 390, formerly 65 P.S. §§ 66.1-66.9, repealed by Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.

. Our Supreme Court further explained:

Certainly, there are legitimate and necessary exceptions to the principle of stare decisis. But for purposes of stability and predictability that are essential to the rule of law, the forceful inclination of courts should favor adherence to the general rule of abiding by that which has been settled. Moreover, stare decisis has "special force” in matters of statutory, as opposed to constitutional, construction, because in the statutory arena the legislative body is free to correct any errant interpretation of its intentions, whereas, on matters of constitutional dimension, the tripartite design of government calls for the courts to have the final word.

603 Pa. at 165, 983 A.2d at 637-38 (citation omitted).

. In Honaman, this Court differentiated Lukes when the addressing the issue of whether a township had possession or control of tax records that were in the possession of a tax collector. In In re Süberstein, we distinguished Lukes in determining whether requested records contained on a township’s commissioner’s personal computer are public records in the possession or control of the township. Likewise, in Office of the Budget, we concluded that Lukes is no longer applicable on the issue of government possession of a record because the concept of possession was ambiguous under the former Right to Know Act but the current Right to Know Law explicitly defines the term.

. Additionally, the Majority points out that there are "substantial differences” between the current RTKL and the former Right to Know Act and contends that the "most obvious” difference is the "severe restriction on redaction of ‘financial records.' ” (Maj. op. at 1125.) I am unable to discern how the manner in which financial records can or cannot be redacted has any relevant impact in determining whether the MCO Rates are financial records in the first place.

. Section 3101.1 of the RTKL states: "If the provisions of this act regarding access to records conflict with any other federal or state law, the provisions of this act shall not apply.”