[J-29A-C-2015] IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.

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 : : : : : : : : : : : : : : : : : : No. 48 EAP 2014 Appeal from the Order of the Commonwealth Court entered 2/19/14 at No. 945 CD 2013 reversing the determination entered on 5/7/13 of the Office of Open Records at No. AP2012- 2017

ARGUED: May 5, 2015

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 : : : : : : : : : : : : : : : : No. 49 EAP 2014 Appeal from the Order of the Commonwealth Court entered 2/19/14 at No. 957 CD 2013 reversing the determination entered on 5/7/13 of the Office of Open Records at No. AP2012- 2017

ARGUED: May 5, 2015

DEPARTMENT OF PUBLIC WELFARE,

Appellee

v. : : : : : : No. 50 EAP 2014 Appeal from the Order of the Commonwealth Court entered 2/19/14 at No. 958 CD 2013 reversing the determination entered on 5/7/13 of the[J-29A-C-2015] - 2

JAMES EISEMAN, JR., AND THE PUBLIC INTEREST LAW CENTER OF PHILADELPHIA,

Appellants : : : : : Office of Open Records at No. AP2012- 2017

ARGUED: May 5, 2015

OPINION

MR. CHIEF JUSTICE SAYLOR DECIDED: October 27, 2 015

This is the second of companion sets of appeals in which w e are asked to evaluate the breadth of the public’s statutory right o f access to discrete information about the implementation of the Medical Assistance Prog ram. The general background for these appeals is set forth in this Court’s opinion in the related case, DPW v. Eiseman , ___ Pa. ___, ___ A.3d ___ (2015), and that contex t, as well as the conventions utilized there, are incorpora ted here by reference. The present appeals primarily concern rates of payments made b y Subcontractors to providers of dental health services to Medicaid enrollee s in the HealthChoices Southeastern Zone from July 1, 2008, through July 30, 2012 (the “Provider Rates”). The pertinent RTKL request lodged by the Public Inter est Law Center of Philadelphia (“Requester”) sought documents, including contracts, rate schedules, and correspondence in DPW’s possession, custody, or control evide ncing the Provider Rates. Requester recognized, at least tacitly, that th e 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 statu tory 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 th e Department did not physically maintain custody of the requested records (since the rel evant agreements were[J-29A-C-2015] - 3

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 Depar tment and managed care organizations designed to ensure DPW’s expedient access to information about services ultimately provided using Medicaid funds. Specif ically, 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 r eady 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 i nformation was not in DPW’s possession, but rather, was contained in records of non-pub lic entities -- Requester invoked a provision of the Law which recasts certain third -party records bearing a requisite connection with the government as public recor ds “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 th is regard, the statute prescribes

that: [a] public record that is not in the possession of an agen cy

but is in the possession of a party with whom the agen cy has contracted to perform a governmental function on behal f of the agency, and which directly relates to the governmen tal 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[J-29A-C-2015] - 4

Provider Rates -- were an integral aspect of such admi nistration. 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)(1)’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 ha d not contracted with Subcontractors or dental-health-services professionals withi n Subcontractors’ provider networks, Requester advanced the following policy-orient ed rationale:

[I]f MCOs could shield their expenditures of public fun ds from public scrutiny under the Right-to-Know Law simply by delegating some or all of their functions to subcontracto rs, it would be trivial for any entity contracting with a pu blic agency to do so. Surely, the Right-to-Know Law and t he meaning of “agency possession” therein may not be read s o 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 t rade secret or confidential proprietary information,” 65 P.S. §67.708(b)(11), a long with the Pennsylvania Uniform

Trade Secrets Act. 1 Requesters lodged an appeal in the OOR, and the MCOs a nd Subcontractors obtained leave to appear as direct-interest participant s and submitted position statements accompanied by supportive materials. 2 DBP, et al. , succinctly summarized the relevant argument as follows:

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

2 The third parties in interest have appeared throug hout in two groups: the first comprised of Dental Benefits Providers, Inc., United Hea lthcare of Pennsylvania, d/b/a United Healthcare Community Plan, and HealthAmerica P ennsylvania, Inc., d/b/a (Lcontinued)[J-29A-C-2015] - 5 Under [Section 506(d)(1)], agency “possession” is satisfied respecting materials that are actually held by third pa rties only where: (1) the materials are in the hands of a third party with whom the agency has contracted, and (2) the mater ials pertain to a governmental function that the third pa rty has contracted to carry out. . . . DPW[, however,] has co ntracted 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 de ntal 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 fi nal 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 th at the Law is “designed to promote access to official government information in order to pr ohibit secrets, scrutinize the actions of public officials and make public officials account able 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 pertainin g to public records. See 65 P.S. §67.708(a).

(continuedL) CoventryCares (collectively, DBP, et al. ); the second group has entailed Aetna Better Health Inc., Health Partners of Philadelphia, Inc., an d Vista Health Plan, Inc., through Keystone Mercy Health Plan, and DentaQuest, LLC (collec tively, “Aetna, et al. ”).[J-29A-C-2015] - 6

The appeals officer proceeded to discuss Section 506(d) (1) of the RTKL in a subsection of his opinion encaptioned: “The Department i s required to obtain records in the possession of the dental subcontractors related to th e 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, apparentl y equating (without further explanation) the requirement of ready access with a man date to affirmatively obtain

records. See id. at 5 (“The fact that the MCOs would . . . hire subcont ractors is clearly contemplated by the agreements between the Department and the MCOs, wherein the Department ‘has ready access to any and all documents and r ecords of transactions pertaining to the provision of services to Recipients,’ including those records in the possession of the dental subcontractors.” (quoting HealthCh oices Physical Health Agreement at 163)). The analysis by the appeals offic er then segued into a crediting of the policy-oriented rationale advanced by Requester:

The OOR finds that Section 506(d) is applicable to recor ds 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 th e records sought directly relate to a governmental functio n being performed by the dental subcontractors, these recor ds should be subject to public access. The OOR finds that any other interpretation would frustrate the intent of S ection 506(d) by making records showing how public monies are spent unavailable to the public even though they dire ctly relate to a governmental function and a contract with a governmental agency.

Id. 3

3 A substantial portion of the balance of the appeals of ficer’s opinion was dedicated to discussion of the Law’s exception for trade secrets, which se rved as a pillar of DPW’s (Lcontinued)[J-29A-C-2015] - 7

A divided, en banc panel of the Commonwealth Court reversed in a publi shed opinion. See Dental Benefit Providers, Inc. v. Eiseman , 86 A.3d 932 (Pa. Cmwlth. 2014). Referencing the statutory presumption of openn ess 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 f irst instance. See Eiseman , 86

A.3d at 936. 4 In this regard, the majority reverted to the defin ition 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 origina te 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 intermed iate court previously had applied the concept of constructive possession in the RT KL context. See id. at 938

(continuedL) initial basis for denying the records request. The Comm onwealth Court, however, did not address this consideration, and based upon our analysi s infra, this aspect is also immaterial to our present decision.

4 The MCOs and Subcontractors appear to dispute that the term “possession,” as it appears in Section 305(a) of the Law, also encompasses cust ody and control. Accord Office of Budget v. OOR , 11 A.3d 618, 622 (Pa. Cmwlth. 2011) (“Had the Leg islature wanted to create the presumption that records in an age ncy’s custody and control, but not in its possession, were public records, it would have included those terms in Section 305.”).[J-29A-C-2015] - 8

(“We recognize constructive possession under Section 901 as a means of access so agencies cannot frustrate the purposes of the RTKL by pla cing 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 wit h the position of Requester and the OOR that the ready-access provision of the standard contra ct between DPW and managed care organizations supported a finding of constr uctive possession in the present circumstances. Rather, the majority regarded such provision as reflecting only “the mere availability of the records to an agency upo n request.” Id. (“That DPW has the contractual right and ability to request records fro m a private contractor does not convert private contractor records into records ‘of’ DPW .”). 5

5 The majority also highlighted that the definition o f “Subcontract” in the standard agreement between DPW and managed care organizations exempts “Provider Agreements,” such that these “are not considered Subcont racts for the purpose of this Agreement and, unless otherwise specified . . ., are not subject to the provisions governing Subcontracts.” HealthChoices Physical Health A greement 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 couch ed in materially different terms – while the advance-written-approval term does i ndeed pertain to “Subcontracts,”

see HealthChoices Physical Health Agreement at 87, the read y-access term pertains more broadly to “ contracts or Subcontracts that cover the provision of medical serv ices 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 Commonwea lth Court majority also failed to apprehend the standard contract’s definition of “Pro vider Agreement,” which simply does not encompass remote agreements between Subcontract ors and dental-healthservices providers. See Brief for Requester at 20. Moreover, Requester obse rves, were these remote agreements actually “Provider Agreem ents” under the standard (Lcontinued)[J-29A-C-2015] - 9

In conjunction with this analysis, the Commonwealth Co urt 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 d etermine 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 th e Law’s definition of a “record,”

see id. §67.102 (defining such term, in relevant part, as inf ormation 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, busin ess or activity”), the majority discerned that “[t]he litmus test under Section 901 rema ins whether the records document a transaction of the agency to which the reque st 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 Subcon tractors’ initial position statements before the OOR, the Commonwealth Court maj ority reasoned:

[T]he Provider Rates are not “records” of DPW as that term is defined in the RTKL . . .. There is no evidence DP W sought to circumvent the RTKL by placing records of its activities into the hands of a third party. Rather, t he Provider Rates are negotiated between Subcontractors and provid ers, 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.

(continuedL) contract, they would be subject to a discrete provision of the standard contract – abjectly overlooked by the Commonwealth Court majorit y – explicitly requiring advance written approval by DPW of Provider Agreements. See HealthChoices Physical Health Agreement at 27 (definition of “Provider Agreement” ), 119.[J-29A-C-2015] - 10

Id. at 939 (footnote omitted). 6 The Commonwealth Court majority proceeded to consider Section 506(d)(1)’s expanded concept of “public records” extending to certa in 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 r equirement for there to be a contractual relationship between a government agency a nd the third party whose records are in question, see 65 P.S. §67.506(d)(1) – simply was not met. The maj ority explained that the intermediate court had enforced, a nd 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)). 7

6 To the extent that the Commonwealth Court’s previou s decision in Lukes v. DPW , 976 A.2d 609 (Pa. Cmwlth. 2009), supported the applicatio n of a policy-oriented rationale focused on openness, the majority declined to extend thi s 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 , ___ Pa. at ___, ___ A.3d at ___.

7 Although the above reasoning would seem dispositive, t he intermediate court majority did not conclude its analysis at this juncture. Rather, i t 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), ot her than that it proceeded to consider whether there was a direct relationship between a gove rnmental function (here, the administration of the HealthChoices Program), and the Provider Rates. See id. at 940- 41. Ultimately, the majority found no such direct re lationship on these terms:

There is no question that the quality of the dental se rvices rendered by providers directly relates to the perform ance of the government function formalized in the DPW/MCO contracts. The same may be true as to the availability o f the services and the manner in which the services are delivere d. However, the cost of obtaining those services . . . doe s not (Lcontinued)[J-29A-C-2015] - 11

Judge McCullough authored the dissenting opinion, conclu ding, inter alia , that the Subcontractors’ agreements with dental-health-serv ices 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 contra cted with the Subcontractors as DPW’s agents, she took the position that “the Subcontracto rs have directly contracted with DPW as principal.” See id. at 945 (emphasis added). Accordingly, Judge McCullough found that Section 506(d)(1)’s contractual-re lationship element was

satisfied. 8

(continuedL) directly relate to the performance of the government

function. Id. at 940.

While expressing substantial misgivings with such reasonin g 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). Th us, and as further discussed below, the statute simply does not serve as a basis for disclosure w here the contract element is absent in the first instance. Accord Brief for DBP, et al. , 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 recor ds actually held by a nongovernmental third party.” (emphasis in original)).

8 Judge McCullough also took issue with the majority’s det ermination that a direct relationship between the Provider Rates and the admin istration 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 Rat es falls squarely within the terms of the Subcontractors’ contractual duties and explicit governmental undertaking s. 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 an d (Lcontinued)[J-29A-C-2015] - 12

The present arguments closely align with the presentati ons before the OOR and the Commonwealth Court. In substance, Requester and it s 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 i n the administration of a public program, the contracts documenting that flow of public funds ‘directly relate’ to the performance of a governmental function.”). In t his 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 p resumption 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 betwee n a government agency and a third-party in possession of salient records as a “crampe d interpretation,” yielding circumstances in which “any governmental contractor could shi eld from disclosure – either deliberately or incidentally – otherwise publi cly available records[.]” Brief for Requester at 27.

(continuedL) contractual duties, the Subcontractors are not only oblig ated

to secure dental services through Provider Agreements, bu t are also required to negotiate Provider Rates with t he dental providers. On these facts, I would conclude that the Provider Agreements and Provider Rates directly relate to the Subcontractors’ performance of a government functio n. These agreements and rates are indispensably necessary to effectuate Medicaid and represent the very thing the Subcontractors contractually agreed to do for and on beh alf of DPW.

Id. at 945.[J-29A-C-2015] - 13

Furthermore, Requester contends that the Commonwealth Court majority’s “litmus test” for constructive possession “is without foundat ion 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), 9 Requester urges that the understanding of public record s within the possession, custody, or control of an agency cann ot be so closely

constrained. See Brief for Requester at 22 (“Even though such records ma y be in agencies’ possession precisely so the agencies can assess whether contractors are complying with a law, this ‘litmus test’ will broadly e xclude these records from public review.”). Requester particularly stresses the “custody or control” aspect, analogizing these terms to custody or control for purposes of civil dis covery. See id. (citing TribuneReview Publ’g Co. v. Westmoreland Cnty. Hous. Auth. , 574 Pa. 661, 672, 833 A.2d 112, 118 (2003) for the proposition that, in construi ng the terms “possession, custody or control,” in the context of civil discovery, this Court h ad 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 custo dy or control of the documents in question.”)). According to Requester:

9 Although Sapp Roofing was a plurality decision, three of the five Justices part icipating in the decision agreed that the payroll records were pu blic 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).[J-29A-C-2015] - 14 [I]f DPW has not been exercising its “Ready Access” power to review contracts setting forth Provider Rates, that w ould represent a troubling abrogation of its responsibilitie s 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 need iest Pennsylvanians. Brief for Requester at 23-24. Requester also argues t hat the implication, by the Commonwealth Court majority, that a citizen requestin g 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,” Eiseman , 86 A.3d at 938 (quoting Office of Budget , 11 A.3d at 621), improperly shifts the burden of pr oof 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 C ommonwealth agency, and

the Commonwealth Court’s determination that the elem ent of a contractual relationship between DPW and Subcontractors is lacking is eminently cor rect. 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 a nd MCOs permits DPW access[J-29A-C-2015] - 15

to “sensitive and proprietary contractual rates that ar e confidentially negotiated between the subcontractors and the dental providers.” Brief for DBP, et al. , at 17. 10 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 healt h insurance marketplace, maintaining the confidentiality of negotiated price t erms 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 Commonwea lth Court’s decisions will cause substantial and widespread harm to Pennsylvania’s cur rent system of providing dental care for Medicaid beneficiaries, decreasing quali ty of care and access to care and increasing the total cost for taxpayers of the Commo nwealth.”) DPW, for its part, merely adopts the MCOs’ and Subcontr actors’ arguments. We deem the issues presented to be matters of statutory construction, over which our review is plenary. Upon consideration, we a gree with the MCOs and Subcontractors on the essential points that the Law channe ls access to third-party records through Section 506(d)(1), and that such provisio n contemplates an actual contract with a third party in possession of salient recor ds.

10 The MCOs and Subcontractors also endorse the Commonwea lth 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 f or 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 9 01’s discussion of “possession, custody or control” in no way suppl ants 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 recor ds 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 add ed)).[J-29A-C-2015] - 16

The Commonwealth Court’s decision expressly recognized t his essential point,

see Eiseman , 86 A.3d at 939-40, and we will affirm its order up on such basis. It is only because the intermediate court’s opinion took several tu rns 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 full y. With regard to records in the possession of third part ies, we differ with suggestions from Requester’s camp that the General Assembl y 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 ha d tempered such policy with explicit limiting terms delineated in the Law, “presum ably on account of the burden, expense, and other impositions attending wholesale discl osure” 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. Nev ertheless, there are countervailing factors, including the benefit of cost eff iciencies associated with the government’s accessing of complex private systems of administ ering health care. Although given the importance of the discrete subject matter – encompassing the essential provision of health care services as well as the i mmense 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 hi ghly generalized principles established under Section 506(d)(1).[J-29A-C-2015] - 17

We appreciate Requester’s concern with the Commonwealt h 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 “publ ic record,” 65 P.S. §67.901, and the incorporated definition of a “record” does en compass the notion of a “transaction or activity of an agency” to which the inte rmediate 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 sh ould 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, al beit on narrower grounds than those developed in the intermediate court’s opini on.

Messrs. Justice Eakin and Baer and Madame Justice Todd join the opinion. Mr. Justice Stevens files a dissenting opinion.