In September 2012, OOR issued a decision granting in part and denying in part the Law Center’s RTK request. OOR emphasized in its analysis that the public entity bears the burden of showing by a preponderance of the evidence that the record requested is exempt from disclosure.

First, OOR granted the Law Center’s request for DPW’s capitation rates because DPW failed to meet its burden in showing the record is exempt. Even though the rates are confidential, DPW failed to produce evidence to show disclosure would provide economic advantage to DPW’s counterparties in future negotiations, and thus, DPW failed to show it would suffer substantial harm. Taxpayer funds are paid to the insurance companies to provide health insurance coverage to Medicaid participants. And, records disclosing taxpayer funds may not be withheld as a trade secret or as confidential proprietary information.

Second, OOR granted the Law Center’s request for the MCOs’ provider rates. Such rates are not trade secrets and even though efforts are taken to keep them confidential, evidence did not show that the MCOs would suffer substantial harm in the disclosure.

Third, OOR determined that actuarial certifications regarding the soundness of capitation rates paid by DPW did not exist, and therefore, DPW met its burden and did not have to disclose the information.

DPW and the MCOs appealed this decision to the Commonwealth Court of Pennsylvania in October 2012 and the release of the documents has been stayed pending the appeal.  Briefing is scheduled for February 2013.