IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Wexford Health Sources, Inc., :

:

Petitioner :

:

 v. : No. 818 C.D. 2019

: Submitted: November 27, 2019

Pennsylvania Department of :

Corrections and Vernon Maulsby, :

:

Respondents :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge1

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: January 6, 2021

Wexford Health Sources, Inc. (Wexford) petitions for review of a 

Final Determination of the Pennsylvania Office of Open Records (OOR), which 

granted in part, and denied in part, the appeal of Vernon Maulsby (Requester) on 

remand pursuant to Department of Corrections v. Maulsby, 121 A.3d 585 (Pa. 

Cmwlth. 2015). We affirm.

Requester, an inmate at the State Correctional Institution at 

Graterford, submitted a request to the Pennsylvania Department of Corrections 

1The decision in this case was reached prior to January 4, 2021, when Judge Brobson 

became President Judge.
2

(Department) pursuant to the Right-to-Know Law (RTKL),2seeking an unredacted 

copy of a contract between the Department and Wexford. The Department 

partially denied the request, providing a redacted copy of the contract and citing 

exemptions to further disclosure as provided in the RTKL, including an exemption 

for confidential proprietary information and trade secrets under Section 

708(b)(11).3 Requester appealed to OOR, arguing that it had previously ordered 

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

3 65 P.S. §67.708(b)(11). Section 708(b)(11) states:

(b) Exceptions.—Except as provided in subsections (c) and (d), 

the following are exempt from access by a requester under this act:

* * *

(11) A record that constitutes or reveals a trade secret or 

confidential proprietary information.

In turn, Section 102 of the RTKL defines “trade secret” as:

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.

65 P.S. §67.102.

Finally, Section 102 also defines “confidential proprietary information” as:

(Footnote continued on next page...)
3

the Department to disclose an unredacted copy of the requested contract in another 

case. See Gerber v. Pennsylvania Department of Corrections, (OOR Dkt. AP 

2014-0186, filed March 10, 2014) 2014 PA O.O.R.D. LEXIS 1487, (Gerber). 

OOR granted Requester’s appeal on the basis that the Department was collaterally 

estopped from asserting any exemptions to disclosure because of the unappealed 

OOR order in Gerber. 

On appeal, this Court upheld OOR’s holding that the Department was 

collaterally estopped from raising exemptions to disclosure, Maulsby, 121 A.3d at 

589, but noted that Wexford was not offered timely notice of the OOR appeal, nor 

provided with an opportunity to protect its trade secrets or confidential proprietary 

information. See id. at 590 (“[T]his Court has consistently recognized the serious 

due process concerns implicated by this lack of notice, particularly where the 

confidential information of a private entity is at stake.”).4

 

(continued...)

Commercial or financial information received by an agency:

(1) which is privileged or confidential; and

(2) the disclosure of which would cause substantial harm to the 

competitive position of the person that submitted the information.

Id.

4 Specifically, we noted the following relevant procedural history of the case:

The OOR denied a request for reconsideration by the 

Department and the Department thereafter filed a petition for 

review with this Court. Wexford subsequently filed an application 

for leave to intervene with this Court alleging that the Department 

never notified it of the OOR appeal. Wexford alleged that the 

Department first notified it of this matter on June 27, 2014, seven 

(Footnote continued on next page...)
4

As a result, this Court concluded:

There is no dispute that the Department failed to notify 

Wexford as directed in [an OOR May 21, 2014 letter.5] 

Thus, Wexford never had notice or an opportunity to be 

heard before the OOR rendered a final determination in 

this case. In accordance with our prior case law, 

Wexford should be afforded an opportunity to challenge 

the release of any purported confidential proprietary 

information. The General Assembly specifically chose to 

protect this type of information in [S]ection 708(b)(11) of 

the RTKL. [G]ranting access to the requested record 

would eviscerate the protection that was expressly 

provided by the General Assembly.

Accordingly, the final determination of the OOR is 

vacated, and the matter is remanded to the OOR for 

further proceedings consistent with this opinion.

 

(continued...)

days after the OOR’s final determination was issued, at which time 

Wexford requested the opportunity to participate in any further 

proceedings before the OOR and to present substantive evidence in 

the context of reconsideration. By order dated August 25, 2014, 

we granted Wexford’s application for leave to intervene.

Maulsby, 121 A.3d at 588.

5 Section 1101(c)(1) of the RTKL states:

A person other than the agency or requester with a direct interest in 

the record subject to an appeal under this section may, within 15 

days following receipt of actual knowledge of the appeal but no 

later than the date the appeals officer issues an order, file a written 

request to provide information or to appear before the appeals 

officer or to file information in support of the requester’s or 

agency’s position.

65 P.S. §67.1101(c)(1).
5

Id. at 593 (citation omitted).

On remand, Wexford identified five categories of the requested 

records that it claimed were exempt from disclosure: (1) Electronic Medical 

Records software; (2) confidential policies and procedures; (3) a medical services 

implementation plan; (4) customer/subcontractor information; and (5) financial 

information relating to its ability to perform the contract. See Reproduced Record 

(R.R.) at 393a-405a. Wexford submitted a position statement supported by the 

affidavit of Nickolas Little (Little Aff.), Wexford’s Vice President of Strategic 

Contracting and Compliance, to support its claimed exemptions. See id. at 410a418a.6

6 Wexford alleged the following regarding the purported exemption from disclosure of 

the requested financial information:

Numerous information and/or pages of the Wexford 

Contract were redacted to remove financial information regarding 

[Wexford] and [Wexford’s] subcontractors. . . . Section 708(b)(26) 

of the RTKL exempts from disclosure financial information 

submitted by a bidder in response to a request for proposal to 

demonstrate its economic capability. 65 P.S. §67.708(b)(26); 

Procurement Handbook, Part I, Chapter 50. [Wexford] submitted 

its financial information only to demonstrate its economic 

capacity, and that of its subcontractor, to provide healthcare 

services for the Department. Little Aff., ¶29.

This financial information also qualifies as confidential 

proprietary information pursuant to RTKL Section 708(b)(11) 

because it includes financial information which, if known by 

competitors, would cause substantial harm to [Wexford’s] market 

position. Little Aff., ¶30. Access to the company-wide financial 

information is limited to fewer than 8 individuals within the 

company, some with only limited access.

R.R. at 404a-405a. See also Section 708(b)(26) of the RTKL, 65 P.S. §67.708(b)(26) (“[T]he 

following are exempt from access by a requester under this act: . . . [F]inancial information of a 

(Footnote continued on next page...)
6

On June 6, 2019, OOR issued a Final Determination granting in part, 

and denying in part, Wexford’s appeal. See R.R. at 421a-428a. OOR granted 

Wexford’s appeal with respect to the first four categories of the requested Wexford 

records, finding that they are exempt from disclosure pursuant to Section 

708(b)(11) of the RTKL. See id. at 424a-427a. 

However, OOR denied Wexford’s appeal with respect to the requested 

financial information stating, in relevant part:

Wexford redacted certain financial information 

from the Wexford contract. In his affidavit, Mr. Little 

attests that this information is limited to fewer than 8 

company employees and is not generally known to the 

public. Mr. Little further attests that this information was 

only provided to the Department to demonstrate 

Wexford’s capability to perform, and that disclosure of 

this information to the public “would result in substantial 

harm to Wexford[.]” While Mr. Little’s affidavit 

sufficiently details the efforts undertaken to keep this 

information confidential, Mr. Little’s affidavit provides 

no detail as to how disclosure of this information would 

be of value to Wexford’s competitors. Accordingly, 

Wexford has failed to meet its burden of proof that this 

financial information is either “confidential proprietary 

information,” or a “trade secret.”1

* * *

 

1 Wexford also argues that this financial information is 

exempt from disclosure under Section 708(b)(26) of the 

RTKL, which exempts from disclosure financial 

information submitted with a bid to demonstrate a 

bidder’s capability to perform under the proposed 

 

(continued...)

bidder or offeror requested in an invitation for bid or request for proposals to demonstrate the 

bidder’s or offeror’s economic capability[.]”).
7

contract. 65 P.S. §67.708(b)(26). This matter is before 

the OOR on remand to consider whether the redacted 

information is exempt from disclosure pursuant to 65 

P.S. §67.708(b)(11). Where a case is remanded for a 

specific and limited purpose, issues not encompassed 

with the remand order may not be considered on remand. 

See Levy v. Senate of [Pennsylvania, 94 A.3d 436, 442 

(Pa. Cmwlth. 2014)] (not considering issues under the 

RTKL not within the scope of a remand order). A 

remand does not permit a litigant a “proverbial second 

bite at the apple.” Id. Therefore, the OOR cannot 

consider Wexford’s new defense to redacting this 

information.

R.R. at 427a (citation omitted). Wexford then filed the instant petition for our 

review of OOR’s Final Determination.7

On appeal,8 Wexford argues that OOR erred in refusing to consider 

whether the financial information is exempt from disclosure under Section 

708(b)(26) of the RTKL, and in determining that Wexford did not sustain its 

burden of proving that the financial information is exempt from disclosure as 

confidential proprietary information under Section 708(b)(11). We do not agree.

With respect to the former claim, we note that Wexford’s Application 

for Leave to Intervene in the Maulsby appeal alleged the following, in relevant 

part:

14. The Wexford Contract contains highly 

confidential and proprietary information, which is and 

must be protected from disclosure pursuant to the 

7 This Court’s review of OOR’s Final Determination is de novo and our scope of review 

is plenary. Bowling v. Office of Open Records, 75 A.3d 453, 467 (Pa. 2013).

8 By October 9, 2019 letter, the Department informed this Court that it would not be 

filing a brief in this case. By November 22, 2019 order, this Court precluded Requester from 

filing a brief or participating in this matter based on his failure to comply with our prior order 

directing the filing of a brief.
8

RTKL’s exemption provisions, including the specific 

exemption for confidential and proprietary information, 

65 P.S. §67.708(b)(11).

Application for Leave to Intervene (No. 1222 C.D. 2014, filed July 21, 2014) ¶14. 

Moreover, in the appellate brief that Wexford filed as Intervenor, Wexford only 

argued the applicability of the exemption contained in Section 708(b)(11) of the 

RTKL, and did not assert that the requested financial information is exempt from 

disclosure under Section 708(b)(26) as well. See Intervenor’s Brief (No. 1222 

C.D. 2014, filed November 3, 2014) at 5-6, 10, 12-17.9 This is precisely why this 

Court issued the limited remand order in Maulsby directing that “Wexford should 

be afforded an opportunity to challenge the release of any purported confidential 

proprietary information” because “[t]he General Assembly specifically chose to 

protect this type of information in section 708(b)(11) of the RTKL.” Id. at 593.

This Court has recently observed:

Pa. R.A.P. 2591(a) states, in pertinent part: “On 

remand of the record the . . . government unit below shall 

proceed in accordance with the judgment or other order 

of the appellate court[.]” See also Section 706 of the 

Judicial Code, 42 Pa. C.S. §706 (“An appellate court may 

affirm [or] vacate . . . any order brought before it for 

review, and may remand the matter and . . . require the 

entry of such appropriate order . . . as may be just under 

the circumstances.”).

9

It is appropriate for this Court to take judicial notice of Wexford’s filings in this Court 

in the Maulsby appeal. See, e.g., Pa. R.E. 201(b)(2) (“The court may judicially notice a fact that 

is not subject to reasonable dispute because it . . . can be accurately and readily determined from 

sources whose accuracy cannot reasonably be questioned.”); Lozado v. Workers’ Compensation 

Appeal Board (Dependable Concrete Work), 123 A.3d 365, 374 n. 10 (Pa. Cmwlth. 2015) (“The 

trial court orders were not included in the certified record. However, ‘it is well settled that this 

Court may take judicial notice of pleadings and judgments in other proceedings where 

appropriate.’ Lycoming County v. Pennsylvania Labor Relations Board, 943 A.2d 333, 335 n. 8 

(Pa. Cmwlth. 2007).”).
9

As this Court has explained:

“[I]t has long been the law in Pennsylvania that 

following remand, a lower court is permitted to 

proceed only in accordance with the remand 

order.” Commonwealth v. Sepulveda, [144 A.3d 

1270, 1280 n.19 (Pa. 2016)]. In [Levy], which the 

Supreme Court cited with approval in Sepulveda, 

this Court explained: “Where a case is remanded 

for a specific and limited purpose, ‘issues not 

encompassed within the remand order’ may not be 

decided on remand. A remand does not permit a 

litigant a ‘proverbial second bite at the apple.’” 

[Id.] at 442 (quoting In re Indep. Sch. Dist. 

Consisting of the Borough of Wheatland, 912 A.2d 

903, 908 (Pa. Cmwlth. 2006)).

Marshall v. Commonwealth, 197 A.3d 294, 306 (Pa. 

Cmwlth. 2018), aff’d, 214 A.3d 1239 (Pa. 2019). 

Accordingly, we will not consider any issues that have 

been raised that are beyond the confines of our remand 

order herein.

Marshall v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 1115 

C.D. 2019, filed October 8, 2020), slip op. at 9-10.10 Likewise, in this case, OOR 

did not err in refusing to consider any additional exemption under the RTKL that 

Wexford did not assert in any manner in its Application for Leave to Intervene or 

in its Intervenor’s Brief that it filed in the Maulsby appeal prior to the issuance of 

this Court’s limited remand order in that matter.

11

10 See Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code 

§69.414(a) (“Parties may . . . cite an unreported panel decision of this Court issued after January 

15, 2008, for its persuasive value, but not as binding precedent.”).

11 See also Levy, 94 A.3d at 442 (citations omitted), wherein this Court stated:

Where a case is remanded for a specific and limited 

purpose, “issues not encompassed within the remand order” may 

(Footnote continued on next page...)
10

Finally, Wexford claims that OOR erred in determining that it did not 

sustain its burden of proof with respect to the claimed exemption of the financial 

records under Section 708(b)(11) of the RTKL. However, as this Court has noted:

Under the RTKL, an agency bears the burden of 

proving, by a preponderance of the evidence, that a 

record is protected from disclosure under one of the 

enumerated exemptions or contains privileged material. 

Section 708(a)(1) of the RTKL, 65 P.S. § 67.708(a)(1); 

McGowan v. Pennsylvania Department of Environmental 

Protection, 103 A.3d 374, 380 (Pa. Cmwlth. 2014).[12] A 

preponderance of the evidence is a finding “that the 

existence of a contested fact is more probable than its 

nonexistence.” Pennsylvania State Troopers Association 

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

(internal quotation marks omitted).

An agency may present sufficient evidence by the 

submission of affidavits. McGowan, 103 A.3d at 381.

Affidavits are the means through which a 

governmental agency . . . justifies nondisclosure of 

the requested documents under each exemption 

upon which it relied . . . . The affidavits must be 

detailed, nonconclusory, and submitted in good 

faith. . . . Absent evidence of bad faith, the veracity 

 

(continued...)

not be decided on remand. A remand does not permit a litigant a 

“proverbial second bite at the apple.”

Here, the Supreme Court remanded “for consideration of 

the additional reasons for denial raised by the Senate to the Senate 

Appeal’s Officer.” As mentioned above, this new challenge was 

not submitted to the Senate Appeals Officer. Thus, it is beyond the 

scope of our Supreme Court’s remand order.

12 See also Highmark Inc. v. Voltz, 163 A.3d 485, 490 (Pa. Cmwlth. 2017) (“The party 

asserting an exemption bears the burden of proving the exemption applies.”) (citations omitted).
11

of an agency’s submissions explaining reasons for 

nondisclosure should not be questioned.

McGowan, 103 A.3d at 381 (quoting Office of the 

Governor v. Scolforo, 65 A.3d 1095, 1103 (Pa. Cmwlth. 

2013) (citation omitted)). However, conclusory 

affidavits, standing alone, will not satisfy an agency’s 

burden of proof under the RTKL. Id. Moreover, the 

affidavit must be specific enough to permit OOR or a 

reviewing court to ascertain whether the claimed 

exemption applies to the records. McGowan, 103 A.3d at 

381.

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

Services, 187 A.3d 1046, 1059 (Pa. Cmwlth. 2018).

Moreover, this Court has observed:

Section 102 of the RTKL defines “confidential 

proprietary information” as follows:

Commercial or financial information received by 

an agency:

(1) which is privileged or confidential; and

(2) the disclosure of which would cause substantial 

harm to the competitive position of the person that 

submitted the information.

65 P.S. §67.102. In determining whether certain 

information is “confidential,” the OOR must consider 

“the efforts the parties undertook to maintain . . . 

secrecy.” “In determining whether disclosure of 

confidential information will cause ‘substantial harm to 

the competitive position’ of the person from whom the 

information was obtained, an entity needs to show: (1) 

actual competition in the relevant market; and, (2) a 

likelihood of substantial injury if the information were 

released.” “Competitive harm analysis ‘is limited to 

harm flowing from the affirmative use of proprietary 

information by competitors.’”
12

Crouthamel v. Department of Transportation, 207 A.3d 432, 440-41 (Pa. Cmwlth. 

2019) (citation omitted).

In this case, the Little Affidavit that Wexford offered in support of the 

exemption under Section 708(b)(11) of the RTKL states:

29. [Wexford] submitted the financial 

information in question only to demonstrate its and its 

subcontractor’s economic capability to perform 

healthcare services for the Department.

30. This financial information is not generally 

known to the public, and would result in substantial harm 

to Wexford if disseminated.

31. Access to the financial statement 

information is limited to fewer than 8 individuals within 

the company, some with only limited access.

R.R. at 418a.

Such a conclusory affidavit, which merely parrots the statutory 

language of the confidential proprietary information exemption without specific 

detail as to how the exemption applies to the requested financial records is patently 

insufficient to prove that the records at issue are exempt from disclosure.

13 Indeed, 

13 See, e.g., Scolforo, 65 A.3d at 1104, wherein we stated:

The Affidavit contains no further specifics. It is, therefore, without 

more, not sufficient to prove that the records are exempt [as 

internal, predecisional deliberations under Section 708(b)(10)(i) of 

the RTKL, 65 P.S. §67.708(b)(10)(i)]. While the Affidavit tracks 

the language of the exception it presupposes, rather than proves 

with sufficient detail, that the redacted Calendar entries are 

reflective of internal deliberations and, therefore, exempt from 

disclosure. It is not enough to include in the Affidavit a list of 

subjects to which internal deliberations may have related. The 

Affidavit must be specific enough to permit the OOR or this Court 

to ascertain how disclosure of the entries would reflect the internal 

deliberations on those subjects. Because this Affidavit is not 

(Footnote continued on next page...)
13

as OOR correctly explained, “While Mr. Little’s [A]ffidavit sufficiently details the 

efforts undertaken to keep this information confidential, Mr. Little’s affidavit 

provides no detail as to how disclosure of this information would be of value to 

Wexford’s competitors.” R.R. at 427a. Moreover, the Affidavit utterly fails to 

address the “actual competition in the relevant market,” and the “likelihood of 

substantial injury if the information were released” via the “‘harm flowing from 

the affirmative use of proprietary information by competitors.’” Crouthamel, 207 

A.3d at 441. As a result, OOR did not err in concluding that Wexford failed to 

sustain its burden of proof in this regard.

Accordingly, OOR’s Final Determination is affirmed.

MICHAEL H. WOJCIK, Judge

 

(continued...)

detailed, but rather conclusory, Manchester [v. Drug Enforcement 

Admin., 823 F. Supp. 1259, 1265 (E.D. Pa. 1993), aff’d, 40 F.3d 

1240 (3d Cir. 1994)], it is not sufficient, standing alone, to prove 

that the Calendar entries are exempt from disclosure.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Wexford Health Sources, Inc., :

:

Petitioner :

:

 v. : No. 818 C.D. 2019

: 

Pennsylvania Department of :

Corrections and Vernon Maulsby, :

:

Respondents :

O R D E R

AND NOW, this 6

th day of January, 2021, the Final Determination of 

the Office of Open Records, dated June 6, 2019, is AFFIRMED.

__________________________________

MICHAEL H. WOJCIK, Judge