author: Chief Justice SAYLOR. Justice STEVENS,

text:
    124 A.3d 1214
    DENTAL BENEFIT PROVIDERS, INC. and UnitedHealthcare of Pennsylvania, Inc. d/b/a UnitedHealthcare Community Plan and HealthAmerica Pennsylvania, Inc., d/b/a CoventryCares, Appellees v. James EISEMAN, Jr., and the Public Interest Law Center of Philadelphia, Appellants. Aetna Better Health Inc., Health Partners of Philadelphia, Inc., Keystone Mercy Health Plan, and DentaQuest, LLC, Appellees v. James Eiseman, Jr., and the Public Interest Law Center of Philadelphia, Appellants. Department of Public Welfare, Appellee v. James Eiseman, Jr., and the Public Interest Law Center of Philadelphia, Appellants.
    Supreme Court of Pennsylvania.
    Argued May 5, 2015.
    Decided Oct. 27, 2015..

      Benjamin David Geffen, Esq., Philadelphia, for James Eise-man, Jr., and the Public Interest Law Center of Philadelphia.
    Eric L. Cramer, Esq., Berger & Montague, P.C., Philadelphia, Nicholas Urban, Esq., for Daniel Polsky, Amicus Curiae.
    Melissa Bevan Melewsky, Esq., Harrisburg, Pennsylvania NewsMedia Association, for PA NewsMedia Association and PA Freedom of Information Coalition, Amicus Curiae.
    Daniel Boyd Huyett, Esq., Neil Coleman Schur, Esq., Stevens <& Lee, P.C., Philadelphia, for the Pennsylvania Coalition of Medical Assistance Managed Care Organizations, Amicus Curiae.
    Jeffrey L. Poston, Esq., Crowell <& Moring, L.L.P., for America’s Health Insurance Plans.
    Karl Stewart Myers, Esq., Stradley, Ronon, Stevens & Young, L.L.P., Philadelphia, for HealthAmerica Pennsylvania, Inc., UnitedHealtheare Community Plan, CoventryCares, Dental Benefit Providers, Inc., and UnitedHealtheare of Pennsylvania, Inc.
    James J. Rodgers, Esq., Dilworth Paxson, LLP, Philadelphia, for Health Partners of Philadelphia, Inc., Keystone Mercy Health Plan, DentaQuest, LLC.
    Leonard Whitney Crumb, Esq., PA Department of Public Welfare, for Department of Public Welfare.
    SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.
   OPINION

Chief Justice SAYLOR.

This is the second of companion sets of appeals in which we are asked to evaluate the breadth of the public’s statutory right of access to discrete information about the implementation of the Medical Assistance Program.

The general background for these appeals is set forth in this Court’s opinion in the related case, DPW v. Eiseman, 633 Pa. 366, 125 A.3d 19, 2015 WL 6472626 (2015), and that context, as well as the conventions utilized there, are incorporated here by reference. The present appeals primarily concern rates of payments made by Subcontractors to providers of dental health services to Medicaid enrollees in the HealthChoices Southeastern Zone from July 1, 2008, through July 30, 2012 (the “Provider Rates”).

The pertinent RTKL request lodged by the Public Interest Law Center of Philadelphia (“Requester”) sought documents, including contracts, rate schedules, and correspondence in DPW’s possession, custody, or control evidencing the Provider Rates. Requester recognized, at least tacitly, that the Law is directed primarily to the disclosure of records “of a Commonwealth agency,” 65 P.S. § 67.102 (setting for the definition for a “public record”), and that the statutory presumption that records are public ones is directed to records “in the possession of a Commonwealth agency,” id. § 67.305(a). Requester thus contended that, even if the Department did not physically maintain custody of the requested records (since the relevant agreements were downstream contracts between Subcontractors and dental-health-services providers), DPW should be deemed to maintain constructive possession of them.

In support of this proposition, Requester highlighted a requirement contained within the standard written contract between the Department and managed care organizations designed to ensure DPW’s expedient access to information about services ultimately provided using Medicaid funds. Specifically, this ready-access provision is framed as follows:

all contracts or Subcontracts that cover the provision of medical services to the [MCOs] Members must include ... [a] requirement that ensures that the Department has ready access to any and all documents and records of transactions pertaining to the provision of services to Recipients.

HealthChoices Physical Health Agreement at 163 (version effective July 1, 2010).

Alternatively—and to the degree that responsive information was not in DPW’s possession, but rather, was contained in records of non-public entities—Requester invoked a provision of the Law which recasts certain third-party records bearing a requisite connection with the government as public records “of [a Commonwealth] agency.” 65 P.S. § 67.506(d)(1). See generally SWB Yankees LLC v. Wintermantel, 615 Pa. 640, 665, 45 A.3d 1029, 1044 (2012). In this regard, the statute prescribes that:

[a] public record that is not in the possession of an agency but is in the possession of a party with whom the agency has contracted to perform a governmental function on behalf of the agency, and which directly relates to the governmental function and is not exempt under this act, shall be considered a public record of the agency for purposes of this act.

65 P.S. § 67.506(d)(1).

First, Requester noted that “implementing the Medicaid program is a governmental function,” while positing that payments to providers—and, hence, the Provider Rates—were an integral aspect of such administration. Letter Brief for Requester, Eiseman v. DPW, Dkt. No. AP 2012-2017 (Pa. OOR), at 11. Next, Requester set out to address Section 506(d)(l)’s directed focus upon records “in the possession of a party with whom the agency has contracted.” 65 P.S. § 67.506(d)(1) (emphasis added). Given that the Department simply had not contracted with Subcontractors or dental-health-services professionals within Subcontractors’ provider networks, Requester advanced the following policy-oriented rationale:

[I]f MCOs could shield their expenditures of public funds from public scrutiny under the Right>-to-Know Law simply by delegating some or all of their functions to subcontractors, it would be trivial for any entity contracting with a public agency to do so. Surely, the Right-to-Know Law and the meaning of “agency possession” therein may not be read so narrowly and must be read to encompass any subcontractor as well as contractor to a government agency.

Letter Brief for Requester, Eiseman v. DPW, Dkt. No. AP-2012-2017, at 11-12.

DPW denied the request, citing, inter alia, the RTKL exception permitting the withholding of a “record that constitutes or reveals a trade secret or confidential proprietary information,” 65 P.S. § 67.708(b)(ll), along with the Pennsylvania Uniform Trade Secrets Act.

Requesters lodged an appeal in the OOR, and the MCOs and Subcontractors obtained leave to appear as direct-interest participants and submitted position statements accompanied by supportive materials. DBP, et al, succinctly summarized the relevant argument as follows:

Under [Section 506(d)(1) ], agency “possession” is satisfied respecting materials that are actually held by third parties only where: (1) the materials are in the hands of a third party with whom the agency has contracted, and (2) the materials pertain to a governmental function that the third party has contracted to carry out.,.. DPW[, however,] has contracted with the MCOs to carry out the HealthChoices program, not the dental subcontractors. DPW has no direct contractual relationship with the dental subcontractors. Accordingly, the first essential element is missing such that agency “possession” is not satisfied here. As such, the OOR cannot compel disclosure of any materials in the hands of the dental subcontractors.

Letter of DBP, et al., dated Jan. 14, 2013, in Eiseman v. DPW, Dkt. No. AP 2012-2017, at 8 (emphasis in original); accord Letter of Aetna, et al, dated January 14, 2013, in Eiseman, No, AP 2012-2017, at 9-10.

Based on these submissions, the OOR subsequently issued a final determination granting the request for records in full. Initially, the appeals officer highlighted the public policy underlying the RTKL. Eiseman v. DPW, Dkt. No. AP 2012-2017, 2013 WL 1950593, at *2 (Pa. OOR May 7, 2013) (explaining that the Law is “designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials and make public officials accountable for their actions.” (quoting Bowling v. OOR, 990 A.2d 813, 824 (Pa.Cmwlth.2010), aff'd, 621 Pa. 133, 75 A.3d 453 (2013))). Furthermore, he explained, the RTKL places the burden of proof upon a public body to demonstrate exemptions pertaining to public records. See 65 P.S. § 67.708(a).

The appeals officer proceeded to discuss Section 506(d)(1) of the RTKL in a subsection of his opinion encaptioned: “The Department is required to obtain records in the possession of the dental subcontractors related to the payment rates paid to dentists.” Eiseman, Dkt. No. AP 2012-2017, 2013 WL 1950593, at *4. In this regard, the appeals officer pointed to the ready-access provision of the standard agreement between DPW and managed care organizations, apparently equating (without further explanation) the requirement of ready access with a mandate to affirmatively obtain records. See id. at *5 (“The fact that the MCOs would ... hire subcontractors is clearly contemplated by the agreements between the Department and the MCOs, wherein the Department ‘has ready access to any and all documents and records of transactions pertaining to the provision of services to Recipients,’ including those records in the possession of the dental subcontractors.” (quoting HealthChoices Physical Health Agreement at 163)). The analysis by the appeals officer then segued into a crediting of the policy-oriented rationale advanced by Requester:

The OOR finds that Section 506(d) is applicable to records in the possession of the dental subcontractors. While the Department does not contract directly with the dental subcontractors, the dental subcontractors contract with the MCOs to perform services for the Department. Because the records sought directly relate to a governmental function being performed by the dental subcontractors, these records should be subject to public access. The OOR finds that any other interpretation would frustrate the intent of Section 506(d) by making records showing how public monies are spent unavailable to the public even though they directly relate to a governmental function and a contract with a governmental agency.

Id.

A divided, en banc panel of the Commonwealth Court reversed in a published opinion. See Dental Benefit Provid ers, Inc. v. Eiseman, 86 A.3d 932 (Pa.Cmwlth.2014). Referencing the statutory presumption of openness as to records in an agency’s possession, see 65 P.S. § 67.305(a), the Commonwealth Court majority initially considered whether the requested records were within DPW’s possession, custody, or control, such that the presumption might apply in the first instance. See Eiseman, 86 A.3d at 936. In this regard, the majority reverted to the definition of “records,” for purposes of the Law, which encompasses information that documents a transaction “of an agency” which is “received or retained” in connection with a transaction, business, or activity of the agency. Id. at 936-37 (quoting 65 P.S. § 67.102).

The Commonwealth Court majority recognized that, for documents to be “of’ a Commonwealth agency, they need not necessarily originate with or be created by the agency. See id. at 937. Nevertheless, it found that the Department lacks any possession whatsoever of the Provider Rates, a proposition which seems to be otherwise undisputed in this appeal (at least upon any affirmative production of evidence). See id.

Further, the majority acknowledged that the intermediate court previously had applied the concept of constructive possession in the RTKL context. See id. at 938 (“We recognize constructive possession under Section 901 as a means of access so agencies cannot frustrate the purposes of the RTKL by placing their records in the hands of third parties to avoid disclosure.” (citing, inter alia. Office of the Budget, 11 A.3d at 622)). The majority nonetheless differed with the position of Requester and the OOR that the ready-access provision of the standard contract between DPW and managed care organizations supported a finding of constructive possession in the present circumstances. Rather, the majority regarded such provision as reflecting only “the mere availability of the records to an agency upon request.” Id. (“That DPW has the contractual right and ability to request records from a private contractor does not convert private contractor records into records ‘of DPW.”).

In conjunction with this analysis, the Commonwealth Court majority referenced Section 910 of the RTKL, which tasks an agency receiving a written request for access to a record with “mak[ing] a good faith effort to determine if the record requested is a public record ... and whether the agency has possession, custody or control!.]” 65 P.S. § 67.901. Apparently synthesizing this provision with the Law’s definition of a “record,” see id. § 67.102 (defining such term, in relevant part, as information which “documents a transaction or activity of an agency and that is created, received or retained pursuant to the law or in connection with [such] a transaction, business or activity”), the majority discerned that “[t]he litmus test under Section 901 remains whether the records document a transaction of the agency to which the request was directed, not whether they document a transaction of a private contractor.” Eiseman, 86 A.3d at 938.

Additionally, harkening back to the MCOs’ and the Subcontractors’ initial position statements before the OOR, the Commonwealth Court majority reasoned:

[T]he Provider Rates are not “records” of DPW as that term is defined in the RTKL.... There is no evidence DPW sought to circumvent the RTKL by placing records of its activities into the hands of a third party. Rather, the Provider Rates are negotiated between Subcontractors and providers, and do not involve DPW. They are not in DPW’s possession. Also, there is no indication that they were created or received by DPW, or that they evidence any transaction of DPW. At most, the Provider Rates evince a transaction of Subcontractors of the MCOs, with which DPW has no contractual relationship.

Id. at 939 (footnote omitted).

The Commonwealth Court majority proceeded to consider Section 506(d)(l)’s expanded concept of “public records” extending to certain records of non-public individuals and entities. From the outset, it agreed with the MCOs and Subcontractors that one of the statute’s core elements—namely, the requirement for there to be a contractual relationship between a government agency and the third party whose records are in question, see 65 P.S. § 67.506(d)(1)—simply was not met. The majority explained that the intermediate court had enforced, and would enforce, such requirement on its terms. See Eiseman, 86 A.3d at 939-40 (citing Honaman v. Lower Merion Twp., 13 A.3d 1014, 1022 (Pa.Cmwlth.2011)).

Judge McCullough authored the dissenting opinion, concluding, inter alia, that the Subcontractors’ agreements with dental-health-services providers should be deemed to be in DPW’s possession. See Eiseman, 86 A.3d at 943. Construing the Law very liberally, and reasoning that the MCOs contracted with the Subcontractors as DPW’s agents, she took the position that “the Subcontractors have directly contracted with DPW as principal.” See id. at 945 (emphasis added). Accordingly, Judge McCullough found that Section 506(d)(l)’s contractual-relationship element was satisfied.

The present arguments closely align with the presentations before the OOR and the Commonwealth Court. In substance, Requester and its amici hew most closely to a policy-oriented position. See, e.g., Brief for Requester at 14 (“Under the RTKL, when an agency channels taxpayer dollars through middlemen in the administration of a public program, the contracts documenting that flow of public funds ‘directly relate’ to the performance of a governmental function.”). In this regard, they invoke the policy of liberal construction, see Levy v. Senate of Pa., 619 Pa. 586, 619, 65 A.3d 361, 381 (2013) (quoting Allegheny Cnty. Dep’t of Admin. Servs. v. A Second Chance, Inc., 13 A.3d 1025, 1034 (Pa.Cmwlth.2011)), as well as the presumption that the General Assembly “intends to favor the public interest as against any private interest,” 1 Pa.C.S. § 1922(5).

Requester also maintains that disclosure is required per Section 506(d)(1). It characterizes the prerequisite of a direct contract between a government agency and a third-party in possession of salient records as a “cramped interpretation,” yielding circumstances in which “any governmental contractor could shield from disclosure—either deliberately or incidentally—otherwise publicly available records[.]” Brief for Requester at 27.

Furthermore, Requester contends that the Commonwealth Court majority’s “litmus test” for constructive possession “is without foundation and should be rejected as substantially curbing access to documents pertaining to the conduct of public business.” Brief for Requester at 22. Citing Sapp Roofing Co. v. Sheet Metal Workers’ International Association, Local Union No. 12, 552 Pa. 105, 109, 713 A.2d 627, 629 (1998) (plurality) (determining that payroll records of a private roofing contractor in the custody of a local agency were public records, because they evidenced a disbursement by a governmental unit), Requester urges that the understanding of public records within the possession, custody, or control of an agency cannot be so closely constrained. See Brief for Requester at 22 (“Even though such records may be in agencies’ possession precisely so the agencies can assess whether contractors are complying with a law, this ‘litmus test’ will broadly exclude these records from public review.”). Requester particularly stresses the “custody or control” aspect, analogizing these terms to custody or control for purposes of civil discovery. See id. (citing Tribune-Review Publ’g Co. v. Westmoreland Cnty. Hous. Auth., 574 Pa. 661, 672, 833 A.2d 112, 118 (2003) for the proposition that, in construing the terms “possession, custody or control,” in the context of civil discovery, this Court had determined that “the courts of this Commonwealth reject a narrow ‘physical possession’ test, focusing instead on whether the subpoenaed party has a legal right to custody or control of the documents in question.”).

According to Requester:

[I]f DPW has not been exercising its “Ready Access” power to review contracts setting forth Provider Rates, that would represent a troubling abrogation of its responsibilities to ensure that Pennsylvania’s Medicaid program is effective and in compliance with federal and state law. Under the Medicaid Act, “a state must ensure that its state plan incorporates adequate reimbursement rates to enlist a sufficient number of dentists to assure that dental care is available to [Medical Assistance] recipients to the same extent and quality of care as dental care available to the general population in certain geographic areas.” Clark v. Richman, 339 F.Supp.2d 631, 643 (M.D.Pa.2004). The Ready Access requirement is a key tool for DPW to accomplish this objective.... If DPW has not been reviewing such records [encompassing the Provider Rates], it has failed to track the flow of billions of dollars in taxpayer funds that were expended for the benefit of the neediest Pennsylvanians.

Brief for Requester at 23-24. Requester also argues that the implication, by the Commonwealth Court majority, that a citizen requesting records should be required to present evidence that an agency is “attempting to play some sort of shell game by shifting these records to a non-governmental body,” Eisemcm, 86 A.3d at 938 (quoting Office of Budget, 11 A.3d at 621), improperly shifts the burden of proof to requesters instead of agencies as required by the Law, see 65 P.S. § 67.708(a)(1), and turns upon an analysis which is entirely absent from the RTKL.

On the other hand, a core proposition of the MCOs and Subcontractors is that Section 506(d)(1) establishes the only appropriate test for access to third-party records which are not in the possession, custody, or control of a Commonwealth agency, and the Commonwealth Court’s determination that the element of a contractual relationship between DPW and Subcontractors is lacking is eminently correct. See Brief for DBP, et al, at 19 (asserting that Requester’s argument “is nothing more than a complaint about how the General Assembly drafted section 506”). The MCOs and Subcontractors deny that the standard agreement between the Department and MCOs permits DPW access to “sensitive and proprietary contractual rates that are confidentially negotiated between the subcontractors and the dental providers.” Brief for DBP, et al, at 17. The MCOs, their subcontractors, and their amici also touch upon policy considerations in tension with those developed by Requester. See, e.g., Brief for Amicus America’s Health Ins. Plans at 4-5 (asserting that “[a]s in the private health insurance marketplace, maintaining the confidentiality of negotiated price terms is critical to realizing the benefits of a competitive Medicaid managed care market” and that “confidential rate terms keep Medicaid costs down”); Brief for Amicus Pa. Coalition of Med. Assistance Managed Care Orgs. at 3 (“A reversal of the Commonwealth Court’s decisions will cause substantial and widespread harm to Pennsylvania’s current system of providing dental care for Medicaid beneficiaries, decreasing quality of care and access to care and increasing the total cost for taxpayers of the Commonwealth.”)

DPW, for its part, merely adopts the MCOs’ and Subcontractors’ arguments.

We deem the issues presented to be matters of statutory construction, over which our review is plenary. Upon consideration, we agree with the MCOs and Subcontractors on the essential points that the Law channels access to third-party records through Section 506(d)(1), and that such provision contemplates an actual contract with a third party in possession of salient records.

The Commonwealth Court’s decision expressly recognized this essential point, see Eiseman, 86 A.3d at 939-40, and we will affirm its order upon such basis. It is only because the intermediate court’s opinion took several turns with which we either disagree or would consider more closely were it necessary to do so, see supra notes 5 and 7, that we are unable to credit the opinion fully.

With regard to records in the possession of third parties, we differ with suggestions from Requester’s camp that the General Assembly has provided for the “maximum access to financial records and contractor records.” Brief of Amici Pa. NewsMedia Ass’n & Pa. Freedom of Information Coalition at 6 (emphasis added). Rather, as in SWB Yankees, albeit that the policy of liberal access is acknowledged, this Court also appreciates that the General Assembly had tempered such policy with explicit limiting terms delineated in the Law, “presumably on account of the burden, expense, and other impositions attending wholesale disclosure” by non-public entities. SWB Yankees, 615 Pa. at 662, 45 A.3d at 1042.

Certainly, Requester and its amici have identified salient policy considerations favoring public access to downstream Provider Rates. Nevertheless, there are countervailing factors, including the benefit of cost efficiencies associated with the government’s accessing of complex private systems of administering health care. Although given the importance of the discrete subject matter—encompassing the essential provision of health care services as well as the immense associated expense—particularized legislative consideration would seem to be in order relative to the openness or secrecy of third-party records downstream from actual Commonwealth agency contracts, we are left here only to apply the highly generalized principles established under Section 506(d)(1).

We appreciate Requester’s concern with the Commonwealth Court’s “litmus test” for constructive possession under Section 901 of the Law. Nevertheless, Section 901 explicitly harkens back to the essential concept of a “public record,” 65 P.S. § 67.901, and the incorporated definition of a “record” does encompass the notion of a “transaction or activity of an agency” to which the intermediate court majority has rightfully afforded meaning, id. § 67.102. While in light of the policy of liberal construction of the instant remedial statute these terms should be construed broadly, cf. Sapp Roofing, 552 Pa. at 109, 713 A.2d at 629, they simply cannot be ignored, since, at bottom, our present task is one of statutory construction, not independent judicial policymaking.

The order of the Commonwealth Court is affirmed, albeit on narrower grounds than those developed in the intermediate court’s opinion.

Justices EAKIN, BAER, and TODD join the opinion.

Justice STEVENS files a dissenting opinion.

Justice STEVENS,

dissenting.

The public has the statutory right of access to the rates of payments made by Subcontractors to providers of dental health services to Medicaid enrollees in the HealthChoices Southeastern Zone (the “Provider Rates”). Thus, as I find that the Provider Rates should be disclosed and would reverse the Commonwealth Court, I respectfully dissent.

The Majority holds that the “highly generalized principles” established under 65 P.S. § 67.506(d)(1) that are applicable to records in the possession of third parties does not compel disclosure of the Provider Rates. More specifically, the Majority concludes Section 506(d)(1) contemplates an actual contract with a third party in possession of salient records, and finding no such actual contract exists between the Subcontractor, who has physical possession of the agreements evidencing the Provider Rates, and DPW, the Commonwealth agency at issue, the Majority affirms the Commonwealth Court’s decision upon this basis.

In my view, the Majority has interpreted Section 506(d)(1) of the RighR-to-Know Law (“RTKL”) too narrowly and has not given the RTKL the liberal construction necessary “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.” Levy v. Senate of Pennsylvania, 619 Pa. 586, 619, 65 A.3d 361, 381 (2013) (quotation and quotation marks omitted). As this Court has recognized, the objective of the RTKL is “to empower citizens by affording them access to information concerning the activities of their government.” SWB Yankees LLC v. Wintermantel, 615 Pa. 640, 662, 45 A.3d 1029, 1042 (2012).

Accordingly, as to this issue, I am more inclined to accept the dissenting view of Commonwealth Court Judge McCullough, who relevantly stated that:

In this case, DPW is the party principal to the subcontracts between the [Managed Care Organization (“MCO”) ] and the third party Subcontractors. The MCOs lack authority to enter into subcontracts with the Subcontractors, and the only way in which the subcontracts can become valid and enforceable under the HealthChoices Agreement is if DPW ratifies or approves the subcontracts as the principal. Therefore, because the Subcontractors have directly contracted with DPW as principal and are in possession of the Provider Agreements (“in possession of a party with whom the agency has contracted”), ... DPW possesses “public records” for purposes of [S]ection 506(d)(1) of the RTKL.
Moreover, as used in the RTKL, the term “governmental function” is materially ambiguous; yet, it should be construed generally “to connote an act of delegation of some substantial facet of the agency’s role and responsibilities.” [SWB Yankees LLC, 615 Pa. at 664,] 45 A.3d [at 1043]. So long as the requested documents directly relate to the governmental function that is contracted out to the third party, the records are considered to be in the agency’s possession under the RTKL. 65 P.S. § 67.506(d)(1).
In this case, the request for Provider Agreements and Provider Rates falls squarely within the terms of the Subcontractors’ contractual duties and explicit governmental undertakings. Via sub-contractual arrangements, the Subcontractors assume DPW’s governmental obligation to implement Medicaid and ensure that dental care is available for Medicaid recipients. Pursuant to their governmental and contractual duties, the Subcontractors are not only obligated to secure dental services through Provider Agreements, but are also required to negotiate Provider Rates with the dental providers. On these facts, ... the Provider Agreements and Provider Rates directly relate to the Subcontractors’ performance of a government function. These agreements and rates are indispensably necessary to effectuate Medicaid and represent the [“]very thing[”] the Subcontractors contractually agreed to do for and on behalf of DPW.

Dental Benefit Providers, Inc. v. Eiseman, 86 A.3d 932, 944-45 (Pa.Cmwlth.2014) (en banc) (McCullough, J., dissenting).

In addition to affirming the Commonwealth Court’s order on the point that Section 506(d)(1) contemplates an actual contract with a third party in possession of salient records, which is lacking in this case, the Majority further discounts the policy considerations favoring public access to downstream Provider Rates. As Appellants’ amicus curiae indicates, the lack of access to the negotiated Provider Rates prevents a full understanding of the relationship between fees and access, which is critical to addressing disparities in health care cost, quality, and outcomes. Brief of Amicus Curiae Professor Daniel Polsky, Ph.D. at 5. Moreover, lack of information concerning the Provider Rates prevents fully informed policy decisions regarding the state of Medicaid spending and impedes necessary analysis required to improve the functioning of the health care system. See id. at 6, 8. Furthermore, transparency in the government’s oversight of Medicaid is necessary toward the interrelated objective of improving healthcare quality. Id. at 9.

Respectfully, the Majority’s decision today prevents the public from holding government agencies accountable and does not require disclosure of information merely because a “middleman” is involved in the performance of the governmental duties. This is contrary to the remedial legislative intent of the RTKL. Accordingly, as I would require disclosure of the Provider Rates under Section 506(d)(1) of the RTKL, I dissent.

      . Act of Feb. 19, 2004, P.L. 143, No. 14 (as amended, 12 Pa.C.S. §§ 5301-5308).

      . The third parties in interest have appeared throughout in two groups: the first comprised of Dental Benefits Providers, Inc., United Healthcare of Pennsylvania, d/b/a United Healthcare Community Plan, and HealthAmerica Pennsylvania, Inc., d/b/a CoventryCares (collectively, DBP, et al,); the second group has entailed Aetna Better Health Inc., Health Partners of Philadelphia, Inc., and Vista Health Plan, Inc., through Keystone Mercy Health Plan, and DentaQuest, LLC (collectively, "Aetna, et al").

      . A substantial portion of the balance of the appeals officer’s opinion was dedicated to discussion of the Law’s exception for trade secrets, which served as a pillar of DPW’s initial basis for denying the records request. The Commonwealth Court, however, did not address this consideration, and based upon our analysis infra, this aspect is also immaterial to our present decision.

      . The MCOs and Subcontractors appear to dispute that the term “possession,” as it appears in Section 305(a) of the Law, also encompasses custody and control. Accord Office of Budget v. OOR, 11 A.3d 618, 622 (Pa.Cmwlth.2011) ("Had the Legislature wanted to create the presumption that records in an agency’s custody and control, but not in its possession, were public records, it would have included those terms in Section 305.”).

      . The majority also highlighted that the definition of "Subcontract” in the standard agreement between DPW and managed care organizations exempts "Provider Agreements,” such that these "are not considered Subcontracts for the purpose of this Agreement and, unless otherwise specified ..., are not subject to the provisions governing Subcontracts.” HealthChoices Physical Health Agreement at 29-30 (definition of “Subcontract”). The majority reasoned that such "contract language supports DPW's disclaimer of possession and access to Provider Rates.” Eiseman, 86 A.3d at 938.
      The majority, however, failed to appreciate that the noted advance-written-approval and ready-access provisions of the standard agreement are couched in materially different terms—while the advance-written-approval term does indeed pertain to “Subcontracts,” see HealthChoices Physical Health Agreement at 87, the ready-access term pertains more broadly to “contracts or Subcontracts that cover the provision of medical services to the [MCO’s] Members,” id. at 163. See generally Brief for Requester at 18 ("The Ready Access requirement applies to 'all contracts or Subcontracts,' ... but the Commonwealth Court’s analysis elided the crucial words ‘contracts or’." (emphasis adjusted)).
      Parenthetically, Requester develops that the Commonwealth Court majority also failed to apprehend the standard contract's definition of "Provider Agreement,” which simply does not encompass remote agreements between Subcontractors and dental-health-services providers. See Brief for Requester at 20. Moreover, Requester observes, were these remote agreements actually "Provider Agreements” under the standard contract, they would be subject to a discrete provision of the standard contract—abjectly overlooked by the Commonwealth Court majority—explicitly requiring advance written approval by DPW of Provider Agreements. See HealthChoices Physical Health Agreement at 27 (definition of "Provider Agreement”), 119.

      . To the extent that the Commonwealth Court’s previous decision in Lukes v. DPW, 976 A.2d 609 (Pa.Cmwlth.2009), supported the application of a policy-oriented rationale focused on openness, the majority declined to extend this decision, which arose under the predecessor open-records regime, into the context of the RTKL. See Eiseman, 86 A.3d at 941-42.
      We have touched upon the Lukes decision further in the companion appeals. See Eiseman, 633 Pa. at 388, 125 A.3d at 33.

      . Although the above reasoning would seem dispositive, the intermediate court majority did not conclude its analysis at this juncture. Rather, it proceeded to consider whether Subcontractor records should be made available "through the MCOs’ contractual relationship with DPW.” Id. at 940. The majority, however, did not anchor this line of inquiry to any of the terms of Section 506(d)(1), other than that it proceeded to consider whether there was a direct relationship between a governmental function (here, the administration of the HealthChoices Program), and the Provider Rates. See id. at 940-41. Ultimately, the majority found no such direct relationship on these terms:
      There is no question that the quality of the dental services rendered by providers directly relates to the performance of the government function formalized in the DPW/MCO contracts. The same may be true as to the availability of the services and the manner in which the services are delivered. However, the cost of obtaining those services ... does not directly relate to the performance of the government function.

        Id. at 940.
      While expressing substantial misgivings with such reasoning and conclusion pertaining to the asserted lack of a direct relationship, cf. infra note 8, we decline to consider this line of inquiry further. Instead, we merely observe that Section 506(d)(1) requires both possession by "a party with whom the agency has contracted to perform a governmental function” and that the requested record "directly relates to the governmental function.” 65 P.S. § 67.506(d)(1). Thus, and as further discussed below, the statute simply does not serve as a basis for disclosure where the contract element is absent in the first instance. Accord Brief for DBP, et at, at 14 ("Because of the conjunctive 'and' in the statute, if either of the two required elements is missing, then the Law will not deem the agency to constructively possess records actually held by a nongovernmental third party.” (emphasis in original)).

      . Judge McCullough also took issue with the majority’s determination that a direct relationship between the Provider Rates and the administration of the HealthChoices Program was lacking. She developed her point of view on this subject as follows:
      [T]he request for Provider Agreements and Provider Rates falls squarely within the terms of the Subcontractors’ contractual duties and explicit governmental undertakings. Via sub-contractual arrangements, the Subcontractors assume DPW's governmental obligation to implement Medicaid and ensure that dental care is available for Medicaid recipients. Pursuant to their governmental and contractual duties, the Subcontractors are not only obligated to secure dental services through Provider Agreements, but are also required to negotiate Provider Rates with the dental providers. On these facts, I would conclude that the Provider Agreements and Provider Rates directly relate to the Subcontractors' performance of a government function. These agreements and rates are indispensably necessary to effectuate Medicaid and represent the very thing the Subcontractors contractually agreed to do for and on behalf of DPW.

        Id. at 945.

      . Although Sapp Roofing was a plurality decision, three of the five Justices participating in the decision agreed that the payroll records were public records for purposes of the former open-records law. See Sapp Roofing, 552 Pa. at 109, 713 A.2d at 629; id. at 112, 713 A.2d at 630 (Zappala, J., concurring).

      . The MCOs and Subcontractors also endorse the Commonwealth Court’s position, in other cases, that "[b]y its plain language, Section 901 describes the actions that an agency is obligated to take when it receives a request for a record; it does not define what records are subject to disclosure under the RTKL,” Brief for Aetna, et al. at 11 (citing Office of the Budget, 11 A.3d at 619-20). We agree, Notably, Section 901’s discussion of ‘‘possession, custody or control” in no way supplants the initial understanding that it is "public records” which are the subject of disclosure. See 65 P.S. § 67.901 (prescribing that when an agency receives a records request, it "shall make a good faith effort to determine if the record requested is a public record ,.. and whether the agency has possession, custody or control” (emphasis added)).


source: Caselaw Access Project

author: Justice BAER. Justice TODD,

license: Public Domain

text:
    124 A.3d 1225
    Erik ARNESON, Individually and in his Official Capacity as Executive Director of the Office of Open Records, and Senate Majority Caucus, v. Thomas W. WOLF, in his Official Capacity as Governor of the Commonwealth of Pennsylvania, Department of Community and Economic Development, and Office of Open Records, Appeal of: Thomas W. Wolf, in his Capacity as Governor of the Commonwealth of Pennsylvania and Department of Community and Economic Development.
    Supreme Court of Pennsylvania.
    Argued Sept. 9, 2015.
    Decided Oct. 27, 2015.

      Rodney A. Corey, Esq., James Guthrie Mann, Esq., Pennsylvania House of Representatives, Harrisburg, for Majority Caucus of the Pennsylvania House of Representatives, Amicus Curiae.
    Melissa Bevan Melewsky, Esq., Harrisburg, Pennsylvania NewsMedia Association, for PA NewsMedia Association, Ami-cus Curiae.
    John Bartley Delone, Esq., John G. Knorr III, Esq., Harrisburg, Kenneth Lawson Joel, Esq., Pennsylvania Office of Attorney General, for Wolf, Thomas W., Department of Community and Economic Development.
    Charles Rees Brown, Esq., Pennsylvania Office of Open Records, for Office of Open Records.
    Joel L. Frank, Esq., William H. Lamb, Esq., Maureen Murphy McBride, Esq., Scot Russel Withers, Esq., Lamb McErlane, PC, West Chester, Matthew Hermann Haverstick, Esq., Conrad O’Brien PC, Philadelphia, for Ameson, Erik.

      Melissa Mae Green, Esq., Matthew Hermann Haverstick, Esq., Mark Edward Seiberling, Esq., Joshua John Voss, Esq., Conrad O’Brien PC, Philadelphia, for Senate Majority Caucus.
    SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.
   OPINION

Justice BAER.

The order of the Commonwealth Court is affirmed for the reasons set forth in the Commonwealth Court opinion, which is adopted as the opinion of this Court on the question of whether the legislature intended to insulate the Executive Director of the Office of Open Records (OOR), a unique and sui generis independent body, from the Governor’s constitutional power to remove his appointees at-will. See Arneson v. Wolf, 117 A.3d 374 (Pa.Cmwlth.2015). We supplement the Commonwealth Court’s opinion as follows.

On January 13, 2015, as his term was ending, out-going Governor Tom Corbett appointed Erik Arneson (Appellee) as the Executive Director of the OOR for a term of six years, with an optional reappointment for an additional six years. See 65 P.S. § 67.1310(b). On January 20, 2015, the first day of Governor Wolfs term, he terminated Appellee’s employment as Executive Director of OOR. Appellee filed a complaint for mandamus and declaratory relief in the Commonwealth Court, arguing that Governor Wolfs termination of his employment violated the Pennsylvania Constitution and the Right to Know Law (RTKL), 65 P.S. §§ 67.101-67.3104. The Commonwealth Court accepted this argument and reinstated Ap-pellee. The Governor appealed to this Court.

Article VI, Section 7 of the Pennsylvania Constitution concerns public officers such as Appellee and provides for their removal as follows:

All civil officers shall hold their offices on the condition that they behave themselves well while in office, and shall be removed on conviction of misbehavior in office or of any infamous crime. Appointed civil officers, other than judges of the courts of record, may be removed at the pleasure of the power by which they shall have been appointed. All civil officers elected by the people, except the Governor, the Lieutenant Governor, members of the General Assembly and judges of the courts of record, shall be removed by the Governor for reasonable cause, after due notice and full hearing, on the address of two-thirds of the Senate.

Pa. Const, art. VI, § 7. As discussed below, our case law establishes that this section of the Constitution is read together with Article VI, Section 1, which provides for the appointment of officers such as Appellee as follows: “All officers, whose selection is not provided for in this Constitution, shall be elected or appointed as may be directed by law.” Pa. Const, art. VI, § 1. We have long recognized the correlation between an appointer’s removal power in Article VI, Section 7, and the legislature’s power to create appointed offices in Article VI, Section 1. Commonwealth ex rel. Sortino v. Singley, 481 Pa. 367, 392 A.2d 1337, 1339 (1978).

Indeed, we have consistently interpreted these two constitutional provisions together to hold that when the legislature creates a public office in accord with Article VI, Section 1, it may impose terms and limitations regarding tenure or removal as it sees fit, thereby limiting the Governor’s power of removal under Article VI, Section 7. Singley, 392 A.2d at 1339; Watson v. Pennsylvania Tpk. Comm’n, 386 Pa. 117, 125 A.2d 354, 356 (1956) (explaining that Article VI, Section 1 expressly grants the legislature authority to create a public office and to impose terms and limitations on the tenure or removal of one holding that office); Burger v. Sch. Bd. of McGuffey Sch. Dist., 592 Pa. 194, 923 A.2d 1155, 1164 (2007) (recognizing that “when the General Assembly creates a public office it may impose terms and limitations on the removal of the public officer so created.”). Where the legislature creates a public office without imposing terms or conditions on the duration of an incumbent’s tenure or the mode of removal, the method of removal provided in Article VI, Section 7 applies. Watson, 125 A.2d at 356-57 (applying the prior version of Article VI, Section 7).

Whether the legislature has exercised its authority under Article VI, Section 1 to limit the Governor’s removal power under Article VI, Section 7 depends upon the statute creating the public office. Singley, 392 A.2d at 1339 (“Whether an appointed civil officer holding a legislatively created office is subject to removal at the pleasure of the appointing power depends upon legislative intent, ‘to be gleaned from the statute creating or regulating the office.’ ”). We have never required express language in a statute, i.e., that an appointee may only be removed for cause, to find a legislative limitation on the Governor’s removal power. Rather, we look to the totality of the statutory language in accord with the oft-stated rules of statutory construction to glean the legislative intent.

To ascertain that the legislature required a six year tenure for each Executive Director and intended to eliminate the Governor’s power to remove except for cause, the Commonwealth Court properly examined the language and purpose of the RTKL to discern legislative intent on this question. While we generally endorse and accept the Commonwealth Court’s analysis of the multiple factors contained therein which led to the conclusion that the General Assembly intended to immunize the Executive Director from the Governor’s ability to remove him without cause at will, we write to amplify the Commonwealth Court’s opinion in one important respect.

It is undisputed that the OOR, with its Executive Director at the helm, is a unique administrative agency tasked with applying the standards established in the RTKL and making decisions about whether government agencies and officials, including the executive branch and the office of the Governor, have acted timely, carried their burden of establishing why a record is not subject to public access, as well as myriad other issues. We view the Commonwealth Court’s analysis in this case to rest on the OOR’s status as a unique, independent agency charged with the delicate task of applying the RTKL, and the need to insulate the OOR and its Executive Director from the potential for coercive influence from a Governor to accomplish the purpose of the RTKL. Just as the OOR is inherently sui generis, the Commonwealth Court’s analysis is narrow and unique to the OOR and its Executive Director.

Accordingly, the order of the Commonwealth Court is affirmed and its opinion, as supplemented herein, is adopted as that of this Court.

Justice STEVENS did not participate in the consideration or decision of this case.

Chief Justice SAYLOR and Justice EAKIN join the opinion.

Justice TODD files a dissenting opinion.

Justice TODD,

dissenting.

For the reasons ably expressed by President Judge Pelle-grini in his dissent below, see Arneson v. Wolf, 117 A.3d 374 (Pa.Cmwlth.2015) (Pellegrini, P.J., dissenting), I conclude Governor Wolf acted within his constitutional authority in removing the Executive Director of the Office of Open Records, and so I would reverse the order of the Commonwealth Court. Accordingly, I dissent.

      . This provision provides as follows:
      (b) Executive director.—Within 90 days of the effective date of this section, the Governor shall appoint an executive director of the office who shall serve for a term of six years.... The executive director may serve no more than two terms.

      . We do not suggest this Governor would attempt such coercion. We write only to interpret legislative intent, which will remain in effect absent a legislative response or a future court’s reinterpretation of today's holding.