IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Geisinger Health Plan, :
:
Petitioner :
:
v. : No. 15 C.D. 2021
: Argued: February 7, 2022
Department of Human Services :
(Office of Open Records), :
:
Respondent :
UPMC For You, Inc., :
:
Petitioner :
:
v. : No. 19 C.D. 2021
:
Department of Human Services :
(Office of Open Records), :
:
Respondent :
Aetna Better Health :
of Pennsylvania Inc., :
:
Petitioner :
:
v. : No. 24 C.D. 2021
:
Department of Human Services :
(Office of Open Records), :
:
Respondent :
Vista Health Plan, Inc., AmeriHealth :
Caritas Health Plan and Keystone :
Family Health Plan, :
:
Petitioners :
:
v. : No. 26 C.D. 2021
:
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 these consolidated appeals, Aetna Better Health of Pennsylvania
(Aetna), Geisinger Health Plan (Geisinger), UPMC For You, Inc. (UPMC), and
Vista Health Plan, Inc., AmeriHealth Caritas Health Plan, and Keystone Family
Health Plan (collectively, AmeriHealth Caritas) petition for review of the Final
Determination Upon Reconsideration of the Office of Open Records (OOR) granting
in part, denying in part, and dismissing as moot in part, Aetna’s 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 in part and
vacate in part.
1
Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
2
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:
[The HealthChoices Medicaid (HealthChoices)
Program] is a managed care program for Medicaid
recipients. Managed care organizations (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. Aetna is one of those
MCOs. It has provided administration by contract with
[DHS] in two zones since 2010 and in all five zones since
2012.
***
In September 2015, [DHS] issued Request for
Proposals (RFP) 06-15 for new contracts for
administration of the HealthChoices Program in all five
zones. Aetna, which was already administering the
program as an MCO, submitted proposals for all five
zones. However, [DHS] did not select Aetna to negotiate
for new contracts.
Aetna claim[ed] that in evaluating applications
under RFP 06-15, [DHS] stated it applied what it called a
“heritage factor” in evaluating the proposals by all
applicants. See Aetna Better Health of P[ennsylvania],
Inc. v. Dep[artmen]t of Hum[an] Serv[ices] (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
applicant 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.
3
Aetna describe[d] the heritage factor as a “secret
criterion” used to deprive Aetna of new contracts and to
favor other MCOs despite Aetna’s higher proposal scores.
Aetna therefore filed a bid protest. [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 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).” Aetna again submitted a
proposal, and [DHS] again did not select Aetna for
negotiations regarding a contract in any zone. Whether
[DHS] again applied the heritage factor is unclear.
However, Aetna claim[ed] [DHS] “secretly structured the
evaluation criteria and formulas in a manner designed to
achieve a predetermined result, to favor the very same
MCOs that received contracts with the original RFP only
through application of the [h]eritage [f]actor.” Aetna also
allege[d] [DHS] “had secret discussions” with another
MCO about modifying its bid proposal in order to pass
[DHS’s] readiness review procedure.
Aetna and other applicants filed bid protests to RFP
06-15 (Reissued), which [DHS] denied. 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. UnitedHealthcare of P[ennsylvania], Inc. v.
Dep[artmen]t of Hum[an] Serv[ices] (Pa. Cmwlth., No.
790 C.D. 2017, filed Apr[il] 10, 2018), slip op. at 27[.]
***
In October 2019, [DHS] issued [the Request for
Applications (RFA)] in a third attempt to seek new
2
62 Pa. C.S. §§101-2311.
4
contracts regarding administration of the HealthChoices
Program. Aetna submitted an application for all five
zones. [DHS] did not select Aetna for negotiations in any
zone. Aetna received the lowest score of all applicants,
although its scores had been among the highest for RFP
06-15.
Aetna requested debriefing as permitted by . . . the
RFA. [DHS] provided debriefing documents consisting of
a redacted Selection Memorandum and another document
setting forth some, but not all, of [DHS’s] determinations
concerning the strengths and weaknesses of Aetna’s
application. [DHS] refused to provide any other
applicants’ raw scores, comparative analysis of the
applicants, or information about other MCOs’
applications. Allegedly departing from past practice,
[DHS] also declined to provide an interactive debriefing
conference. [DHS] did allow Aetna to submit written
questions but had not answered them as of the date of
filing of the petition for review. Aetna assert[ed] that it
needed answers to its questions in order to determine
whether it had grounds for additional bid protests.
Aetna filed several bid protests regarding the RFA
and later consolidated them. . . . Aetna requested an
evidentiary hearing on its bid protests, but the [Secretary
of Human Services (Secretary)] denied Aetna’s request.
***
On December 4, 2020, the Secretary issued the
Final Determination denying Aetna’s bid protests. The
Secretary concluded [DHS’s] evaluation and selection
were not clearly erroneous, arbitrary, capricious, contrary
to law, or an abuse of discretion.
Aetna Better Health of Pennsylvania, Inc. v. Pennsylvania Department of Human
Services (Pa. Cmwlth., No. 652 M.D. 2020, filed November 17, 2021), slip op. at 2-
6 (citations to record omitted). Ultimately, this Court affirmed the Secretary’s Final
Determination denying Aetna’s bid protests under the RFA and the Procurement
5
Code, and denied Aetna’s request for declaratory judgment and mandamus relief
regarding any debriefing issues. See id. at 11-27.
II.
With respect to the instant appeal, on July 15, 2020, Aetna filed a
request for the following records from DHS:
1. [C]opies of all public records associated with [DHS’s]
response to all bidders’ proposals submitted in response to
[the RFA].
2. [A]ny documents related to the decision referenced in
DHS’s July 1, 2020 letter . . . in which it determined that
the point scores for Aetna’s proposals for the Five
HealthChoice Zones “were not sufficiently high enough”
to justify [its] selection for agreement negotiations.
3. [I]nclud[ing] all documents reflecting Aetna’s, and
other bidders’, scores on the various components of its
proposals for all regions, the scoring criteria, and any other
information or documents related to the evaluation of
Aetna’s proposals.
OOR Docket No. 2020-1709 Exhibit 1 at Exhibit 1.
On August 21, 2020, DHS denied the request in part, redacting some
material from the records that were responsive to Item 1 under the personal
identification information exemption in Section 708(b)(6) of the RTKL.3 DHS also
3
65 P.S. §67.708(b)(6). Section 708(b)(6)(i)(A) states:
[T]he following are exempt from access by a requester under this
act:
***
(6)(i) The following personal identification information:
(Footnote continued on next page…)
6
denied the request as to records that are responsive to Items 2 and 3, asserting that
they are exempt under Section 708(b)(26),4 and that the records contain internal,
predecisional deliberative information that is exempt from disclosure under Section
708(b)(10).5
(A) A record containing all or part of a person’s Social Security
number, driver’s license number, personal financial information,
home, cellular or personal telephone numbers, personal e-mail
addresses, employee number or other confidential personal
identification number.
65 P.S. §67.708(b)(6)(i)(A).
4
65 P.S. §67.708(b)(26). Section 708(b)(26) states:
[T]he 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
record of agency proposal evaluation committees established under
[the Procurement Code,] 62 Pa. C.S. §513 (relating to competitive
sealed proposals).
5
65 P.S. §67.708(b)(10). Section 708(b)(10)(i)(A) states, in relevant part:
[T]he following are exempt from access by a requester under this
act:
***
(10)(i) A record that reflects
(Footnote continued on next page…)
7
On September 8, 2020, Aetna appealed to OOR, challenging DHS’s
denial of the requested records. On September 17, 2020, and September 21, 2020,
OOR granted the requests for Direct Interest Participant status of Geisinger, UPMC,
AmeriHealth Caritas (collectively, Direct Interest Participants), and other applicants,
in Aetna’s OOR appeal.
On September 16, 2020, Aetna sent an email to OOR, which stated, in
relevant part, that “[w]e wish to make clear that in connection with this particular
appeal, we are not seeking copies of any applications submitted in response to [the
RFP], including Schedule Es to such applications.” OOR Docket No. 2020-1709
Exhibit 5.
On September 25, 2020, DHS submitted a position statement
supporting its grounds for denial along with the affidavits of Kern, its Procurement
Specialist, and Andrea Bankes, its Open Records Officer. UPMC also submitted
legal argument and the affidavit of John Lovelace, its President. Additionally,
Geisinger submitted legal argument and the affidavit of David Weader, its Associate
Chief Legal Officer and Regulatory Affairs Officer. That same day, Aetna submitted
supplemental argument to rebut the argument and affidavits of the Direct Interest
Participants.
On October 20, 2020, the OOR Appeals Officer issued a Final
Determination granting the appeal in part, denying it in part, and dismissing the
appeal in part as moot. In relevant part, OOR found that DHS may redact the
(A) The internal, predecisional deliberations of an agency, its
member, employees or officials . . . including predecisional
deliberations relating to a . . . contemplated or proposed policy or
course of action or any research, memos or other documents used in
the predecisional deliberations.
65 P.S. §67.708(b)(10)(i)(A).
8
applicants’ Small Diverse Business (SDB) Commitments because this record is
exempt under Section 708(b)(26) as information taken from submitted proposals
prior to the award of a contract. Based on Kern’s attestation that the SDB
Commitment is taken directly from the applicants’ applications and that no contract
had yet been awarded,6 OOR determined that “[b]ecause [DHS] has established that
the [SDB] Commitment information is taken directly from the applicants’ proposals,
it may redact the [SDB] Commitment information.” OOR Docket No. 2020-1709
Exhibit 20 at 7.
Additionally, in the Final Determination, OOR granted Aetna access to
corporate reference questionnaires, finding that neither DHS nor the Direct Interest
Participants had submitted sufficient evidence to support withholding those records.
See OOR Docket No. 2020-1709 Exhibit 20 at 10-11 (“However, [DHS] has not
provided any evidence as to what ‘corporate reference questionnaires’ are, or how
they are records of the evaluation committee. Accordingly, [DHS] may withhold all
of the identified records of the evaluation committee except for the corporate
reference questionnaires.”).7
On October 28, 2020, UPMC filed a Petition for Reconsideration, and
attached a copy of a notice identifying corporate reference questionnaire, attached
6
See OOR Docket No. 2020-1709 Exhibit 16 at 15, 17, 19 (“Each application for [the RFP]
was required to contain a Technical Submittal, a[n SDB] Participation Submittal and a Contractor
Partnership Program Submittal.”; “[T]he procurement process commenced by [the RFP] has not
yet resulted in the award of agreements.”; “[DHS] redacted the SDB Commitment of the applicants
pursuant to [Section 708(b)(26)] because this is proposal information taken from the [a]pplicants’
submissions.”).
7
OOR also explained that “[o]n appeal, [DHS] provided copies of [its] Recommendation
for Selection Memorand[um] with the scores unredacted, notwithstanding the fact that most Direct
Interest Participants in this appeal argued for the score to be withheld,” so that “to the extent that
this appeal seeks these scores, it is dismissed as moot.” OOR Docket No. 2020-1709 Exhibit 20
at 7.
9
as Appendix E to its response to the RFA, as a trade secret/confidential proprietary
information, and arguing that this action alone was sufficient to meet its burden of
proof with respect to the application of the trade secret/confidential proprietary
exemption to those records. See OOR Docket No. 2020-1709 Exhibit 21 at 4-5.8 On
November 3, 2020, both Geisinger and DHS filed Petitions for Reconsideration, and
AmeriHealth Caritas filed a Petition for Reconsideration the following day. See id.
Exhibits 23, 24, 25. All of the parties argued, inter alia, that OOR should reconsider
the disclosure of the corporate reference questionnaires. See generally id.
On November 2, 2020, while UPMC’s Motion for Reconsideration was
pending, Aetna sent an email to OOR, which stated, in pertinent part:
[I]n pursuing its [RTKL] requests, Aetna informed your
Office that the information it was seeking did not
encompass the Appendix “E” of any applicant, as that
Appendix would include the trade secret and confidential
proprietary information of the applicants. At that time, we
should have also exempted from Aetna’s Requests the
applicants’ Appendix “F,” the “corporate reference
questionnaires,” as they may also contain the confidential
and proprietary information of applicants. Aetna is
therefore now withdrawing its requests for disclosure of
the applicants’ completed corporate reference
questionnaires, as well, to the extent those records are
encompassed within Aetna’s RTKL requests that are the
subject of this appeal, or the October 20, 2020 Final
Determination.
OOR Docket No. 2020-1709 Exhibit 22.
On November 17, 2020, OOR granted reconsideration of its Final
Determination. See OOR Docket No. 2020-1709 Exhibit 27. On December 16,
8
See Section 708(b)(11) of the RTKL, 65 P.S. §67.708(b)(11) (“[T]he following are
exempt from access by a requester under this act: . . . A record that constitutes or reveals a trade
secret or confidential proprietary information.”).
10
2020, OOR’s Appeals Officer issued a Final Determination Upon Reconsideration
disposing of Aetna’s appeal. With respect to DHS’s redaction of the SDB
Commitments, OOR stated, in relevant part:
In response to Items 2 and 3, [DHS] provided
redacted copies of [DHS’s] Recommendation for
Selection Memorand[um], redacting the applicants’ total
scores and the [SDB] [C]ommitment of the applicants,
explaining that the SDB [C]ommitment is information
taken from the [a]pplicants’ proposals. In support of its
redaction of the SDB [C]ommitment, [DHS] attests that it
“redacted the SDB [C]ommitment of the applicants
pursuant to [Section 708(b)(26)] because this is proposal
information taken from the [a]pplicants’ submissions.”
Likewise, Part 3(D)(6) of the Recommendation
Memorand[um] provided to the OOR on appeal states:
“As part of their applications, the recommended
[a]pplicants made the following commitments to
SDBs . . . ,” which further supports [DHS’s] attestation
that this information reflects information provided in the
proposals.
Because [DHS] has established that the [SDB]
Commitment information is taken directly from the
applicants’ proposals, it may redact the [SDB]
Commitment information.
OOR Docket No. 2020-1709 Exhibit 31 at 9-10 (citations and footnotes omitted).
OOR also rejected Aetna’s argument that these records are not exempt
as an “other record of the evaluation committee” under Section 708(b)(26), stating,
in pertinent part:
As to Section 708(b)(26), [Aetna] raises two
arguments. First, that in other instances, [DHS] has
previously disclosed similar scores while a contract award
was pending, and that [DHS’s] failure to do so here is
inconsistent and arbitrary. However, Section 506(c)
permits an agency to exercise its discretion “to make any
11
otherwise exempt record accessible . . . .” 65 P.S.
§67.506(c).
Second, [Aetna] argues that [DHS] cannot withhold
records that are merely “related to” evaluation
committees, as opposed to the narrower language of
Section 708(b)(26), which exempts records “of” an
evaluation committee. . . .
Consistent with our prior decisions, we find that the
evaluator workbooks, instructions, and training materials
are exempt as “other records of agency proposal
evaluation committees,” as [DHS] has testified and argued
that these documents were used by its evaluation
committee to score and evaluate the technical submittals
of competition proposal applications. However, [DHS]
has not provided any evidence as to what “corporate
reference questionnaires” are, or how they are records of
the evaluation committee. Accordingly, [DHS] may
withhold all of the identified records of its evaluation
committee, except for the corporate reference
questionnaires.
OOR Docket No. 2020-1709 Exhibit 31 at 11-13 (citations and footnote omitted).
Finally, with respect to the disclosure of records containing the
corporate reference questionnaire, OOR stated, in relevant part:
There are essentially two arguments raised by the
Direct Interest Participants and [DHS] upon
reconsideration. First, that the evidence presented by the
Direct Interest Participants during the original appeal
should have been sufficient to prevent disclosure; second,
that the issue is now moot given that [Aetna] has
withdrawn. Both of these arguments fail.
***
[UPMC] states that [it] attached a copy of a notice
identifying corporate reference questionnaires as trade
secret, and argues that this action was sufficient to meet
[its] legal burden of proof as to the application of all
12
elements of the trade secret exemption in regard to those
specific records.
During the appeal, [UPMC] submitted a sworn
declaration of [] Lovelace, its President. The sworn
statement generally discussed the procurement process
and alleges that disclosure of any of the information on the
attached Appendix E would cause competitive harm,
stating “[a]s is evident from the Trade Secret/Confidential
Proprietary Information Notice, significant information
throughout [UPMC’s] proposal is protected and
confidential and proprietary information.” There was no
mention of “corporate reference questionnaires” in []
Lovelace’s declaration, nor were they specifically named
in the attached documentation.
***
Case law is clear that the mere fact that an entity
includes certain information on a “trade secret notice”
submitted as part of a proposal is not necessarily sufficient
to meet its burden of proof to be able to withhold the same
information in a RTKL appeal. Indeed, the
Commonwealth Court has repeatedly held that under the
RTKL, “a generic determination or conclusory statements
are not sufficient to justify the exemption of public
records.”
***
It is apparent that all parties assumed that corporate
reference questionnaires were exempt, as evidenced by
[Aetna’s] withdrawal of the same after the issuance of the
Final Determination. However, this fact was not relayed
to the Appeals Officer, who reviewed the arguments and
sworn statements and found no direct mention of
“corporate reference questionnaires,” which were clearly
identified by [DHS] as responsive but not adequately
defended by any party during the appeal.[9]
9
Citing Section 35.241 of the General Rules of Administrative Practice and Procedure, 1
Pa. Code §35.241, the Appeals Officer refused to accept or consider an affidavit that was submitted
(Footnote continued on next page…)
13
***
While [Aetna] may choose not to seek enforcement
of this Final Determination, the fact remains that the
parties’ mutual mistake is not sufficient to overturn the
legal conclusion reached in the underlying Final
Determination.
OOR Docket No. 2020-1709 Exhibit 31 at 14-15, 16, 17 (citations and footnotes
omitted). Accordingly, the Appeals Officer issued an order granting in part, denying
in part, and dismissing as moot in part, Aetna’s appeal, and “required [DHS] to
provide copies of the corporate reference questionnaires [to Aetna] within thirty
days.” Id. at 17.
Aetna and the Direct Interest Participants then filed the instant cross-
petitions for review in this Court.10 On appeal, Aetna argues that OOR erred in
failing to direct DHS to provide the SDB Commitment scores in its Selection
Memorandum, and in refusing to find that its request for the corporate reference
questionnaires is moot. The Direct Interest Participants argue that OOR properly
found that the SDB Commitment scores in DHS’s Selection Memoranda are exempt
from disclosure under Section 708(b)(26) of the RTKL, and that OOR erred in
failing to dismiss as moot Aetna’s request for disclosure of the corporate reference
questionnaires.
by Geisinger following the grant of reconsideration “specifically addressing corporate reference
questionnaires for the first time in this appeal process, in an apparent effort to cure its evidentiary
deficiency in the underlying appeal.” OOR Docket No. 2020-1709 Exhibit 31 at 17 n.8.
10
When reviewing a decision by OOR, our standard of review is de novo, and our scope
of review is plenary. Bowling v. Office of Open Records, 75 A.3d 453, 477 (Pa. 2013).
14
III.
A.
With respect to the SDB Commitment scores, OOR properly
determined that the SDB Commitment scores in DHS’s Selection Memorandum are
exempt from disclosure under Section 708(b)(26) of the RTKL. As DHS notes, the
affidavits clearly proved that the SDB percentages were taken directly from the
applicants’ submissions in response to the RFA even though Aetna erroneously
refers to the SDB participation commitments as SDB scores. As an applicant, Aetna
knows that DHS did not score the proposed SDB participation commitments
because, as the RFA explained, applicants were required to submit the percentage of
its SDBs participation commitment and specifically stated that the “Commonwealth
will not score the SDB Submittal of the applicants.” Reproduced Record (RR) at
96a. DHS released its Selection Memorandum without the scores redacted. It was
not required to release the SDB participation commitments because they were not
part of the scores, but came directly from the applications.
Indeed, as this Court has explained:
[T]he General Assembly intended the phrase “award of the
contract” for purposes of Section 708(b)(26) to mean the
execution of the contract, not the selection of offerors.
This interpretation is the most logical when read in
conjunction with the relevant provisions of the
Procurement Code. This interpretation also furthers the
purpose of Section 708(b)(26) to foster competitive
bidding until a contract is awarded.
Applying this interpretation to the facts presented
here, when UnitedHealthcare [of Pennsylvania, Inc.] made
its RTKL requests and OOR ruled on the appeal, DHS had
selected offerors for negotiations under Section 513(g) of
the Procurement Code, which provides that “[t]he
responsible offeror whose proposal is determined in
15
writing to be the most advantageous to the purchasing
agency, taking into consideration price and all evaluation
factors, shall be selected for contract negotiation.” 62
Pa. C.S. §513(g). However, negotiations with the selected
offerors had not commenced and no contracts had been
finalized or executed. There is no evidence that DHS
made any announcement of an award of contracts under
[the RFP] in the period before OOR’s decision. In fact,
DHS submitted affidavits attesting that no award of any
contracts or agreements under [the RFP] has occurred.
Because no contract has been awarded, the requested
documents pertaining to the RFP continue to remain
exempt from disclosure under Section 708(b)(26) of the
RTKL.
UnitedHealthcare of Pennsylvania, Inc. v. Pennsylvania Department of Human
Services, 187 A.3d 1046, 1058 (Pa. Cmwlth. 2018) (citations to record and footnote
omitted).
Thus, although DHS released the scores in the Selection Memoranda,
it in no way waived the exemption under Section 708(b)(26) for the SDB
Commitments that were taken by DHS directly from the applications submitted in
response to the RFA, and OOR did not err in applying this exemption to these
records. As a result, OOR’s Final Determination Upon Reconsideration will be
affirmed in this respect.
B.
However, regarding the release of the corporate reference
questionnaires, it is inappropriate for OOR to direct DHS to release records to Aetna
that Aetna does not wish to receive. Aetna’s November 2, 2020 email to OOR
clearly and unequivocally demonstrates that Aetna wished to amend its RTKL
request by removing Appendix F containing the corporate reference questionnaires
from the records that it is seeking. See OOR Docket No. 2020-1709 Exhibit 22.
16
DHS agreed to withhold the corporate reference questionnaires from the records that
it would disclose under the request. See id. Exhibit 24 at 6 (“Based on [Aetna’s]
withdrawal, the OOR should grant reconsideration to issue a new final determination
dismissing the request for the corporate reference questionnaires as moot.”). As a
result, OOR erred in refusing to remove the corporate reference questionnaires from
Aetna’s RTKL request as moot, and in directing DHS to release these records to
Aetna. See, e.g., Pennsylvania Turnpike Commission v. Van Osdol (Pa. Cmwlth.,
No. 366 C.D. 2015, filed December 16, 2015), slip op. at 5 (“[The r]equester no
longer seeks the documents that the [Turnpike] Commission refuses to provide, and,
therefore, there is no case or controversy between the parties. Further, because [the
r]equester has withdrawn its request and does not seek enforcement of the OOR’s
final determination, [the r]equester’s appeal to the OOR is also moot, as the [r]equest
effectively no longer exists.”).11 Thus, OOR’s Final Determination Upon
Reconsideration will be vacated in this respect.
Accordingly, OOR’s Final Determination Upon Reconsideration is
affirmed in part and vacated in part in accordance with the foregoing memorandum
opinion.
MICHAEL H. WOJCIK, Judge
Judge Wallace did not participate in the decision of this case.
11
See also Pa. R.A.P. 126(b) (“As used in this rule, ‘non-precedential decision’ refers to
. . . an unreported memorandum opinion of the Commonwealth Court filed after January 15, 2008.
[] Non-precedential decisions . . . may be cited for their persuasive value.”).
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Geisinger Health Plan, :
:
Petitioner :
:
v. : No. 15 C.D. 2021
:
Department of Human Services :
(Office of Open Records), :
:
Respondent :
UPMC For You, Inc., :
:
Petitioner :
:
v. : No. 19 C.D. 2021
:
Department of Human Services :
(Office of Open Records), :
:
Respondent :
Aetna Better Health :
of Pennsylvania Inc., :
:
Petitioner :
:
v. : No. 24 C.D. 2021
:
Department of Human Services :
(Office of Open Records), :
:
Respondent :
Vista Health Plan, Inc., AmeriHealth :
Caritas Health Plan and Keystone :
Family Health Plan, :
:
Petitioners :
:
v. : No. 26 C.D. 2021
:
Department of Human Services :
(Office of Open Records), :
:
Respondent :
ORDER
AND NOW, this 15th day of December, 2022, the Final Determination
Upon Reconsideration of the Office of Open Records, dated December 16, 2020, at
Docket No. AP 2020-1709, is AFFIRMED in part and VACATED in part in
accordance with the foregoing memorandum opinion.
__________________________________
MICHAEL H. WOJCIK, Judge