Staff attorney Benjamin D. Geffen presented the argument on behalf of the Public Interest Law Center. The insurance companies divided their argument among two lawyers, James Rodgers of Dilworth Paxson and Karl Myers of Stradley Ronon.  Although we originally made our public records request to the Department of Human Services, the Department did not participate in the argument.

Click here to see the argument (1st video).

During the argument, the five sitting Justices pressed both sides about how the Court should draw the line between a state agency’s direct expenditure of money—which all agree should be public—and a state agency’s expenditure that goes through multiple subcontractors before reaching its final destination. Under Pennsylvania’s current Medicaid system, the state hires insurance companies, which in turn hire dental plans, to reimburse dentists for treating people enrolled in Medicaid. The lower courts ruled that documents that show the flow of money from the first level of insurance companies to the dental plans, and the dental plans to the dental providers, are not public.

Chief Justice Saylor asked attorneys representing the insurance companies why the public should be prevented from knowing what happens to money that flows through a contractor to purchase dental services.  He asked, for example, whether it would be important for the public to know if large parts of the public money do not reach the dentists, but instead are paid to the multiple layers of insurance companies.

The Justices also noted that this type of information about rates paid to providers was available under the prior version of the Right-to-Know Law; and that the purpose of the new law, adopted by the legislature in 2009, was to expand the universe of information that is available.

During argument the Court explored specific legal issues under the Right-to-Know Law presented by the case.  On the question of whether the rates are financial records which must be produced, the Court asked both sides whether the definition of financial records—which refer to purchases “by” an agency—covers purchases that pass through multiple subcontractors.  The Court also explored the insurance companies’ claim that rates paid to dentists are not in the “possession” of the Department of Human Services, even though all agree that the Department has the right to examine them.  In general, the agency only has the obligation to produce documents which are in the agency’s “possession.” Justice Eakin asked whether the right to review the records is the same as possessing them.

Finally, the Court asked questions about whether the rates are protected under a separate trade secrets law and therefore should not be produced.  The Right-to-Know Law provides that documents that are financial records must be produced even if they contain trade secrets, but the court below had held that the separate trade secrets law prevented their disclosure.  Justices Todd and Eakin asked questions to explore the circumstances under which the separate trade secrets law might apply and whether this case presents such circumstances.  Justice Eakin asked how the agency would know that the insurance companies considered a particular piece of information as a trade secret.

We now await a decision from the court.