[J-29A-C-2015] 

[MO: Saylor, C.J.] 

IN THE SUPREME COURT OF PENNSYLVANIA 

EASTERN DISTRICT 

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 

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No. 48 EAP 2014 

Appeal from the Order of the 

Commonwealth Court entered 

02/19/2014 at No. 945 CD 2013 

reversing the determination entered on 

05/07/2013 of the Office of Open 

Records at No. AP2012-2017. 

ARGUED: May 5, 2015 

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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, 

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No. 49 EAP 2014 

Appeal from the Order of the 

Commonwealth Court entered 

02/19/2014 at No. 957 CD 2013 

reversing the determination entered on 

05/07/2013 of the Office of Open 

Records at No. AP2012-2017. 

ARGUED: May 5, 2015 
[J-29A-C-2015] [MO: Saylor, C.J.] - 2 

 Appellants 

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DEPARTMENT OF PUBLIC WELFARE, 

 Appellee 

 v. 

JAMES EISEMAN, JR., AND THE PUBLIC 

INTEREST LAW CENTER OF 

PHILADELPHIA, 

 Appellants 

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No. 50 EAP 2014 

Appeal from the Order of the 

Commonwealth Court entered 

02/19/2014 at No. 958 CD 2013 

reversing the determination entered on 

05/07/2013 of the Office of Open 

Records at No. AP2012-2017. 

ARGUED: May 5, 2015 

DISSENTING OPINION 

MR. JUSTICE STEVENS DECIDED: October 27, 2015

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 
[J-29A-C-2015] [MO: Saylor, C.J.] - 3 

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 Right-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). 
[J-29A-C-2015] [MO: Saylor, C.J.] - 4 

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. 
[J-29A-C-2015] [MO: Saylor, C.J.] - 5 

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.