Submitted February 13, 2015
Appealed from No. AP 2014-0820. State Agency: Office of Open Records.
Valerie Janosik-Nehilla, Assistant Counsel, Mechanicsburg, for petitioner.
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE P. KEVIN BROBSON, Judge.
BERNARD L. McGINLEY, J.
The Department of Corrections (Department) petitions for review of the June 20, 2014 final determination of the Office of Open Records (OOR) granting the appeal of Vernon Maulsby (Requestor).
On May 5, 2014, Requestor, an inmate at the State Correctional Institution at Graterford (SCI-Graterford), submitted a Right-to-Know Law (RTKL) request to the Department seeking an unredacted copy of the contract between the Department and Wexford Health Sources, Inc. (Wexford). On May 7, 2014, the Department partially granted the request, redacting certain information in order to protect non-public and sensitive data and citing sections 708(b)(1)(ii) (relating to the risk of physical harm to or personal security of an individual) and 708(b)(6) (relating to personal identification information), 708(b)(11) (relating to confidential proprietary information), and 708(b)(26) (relating to agency contracts, bids, bidder information, or identity of members, notes and other records of agency proposal evaluation committees) of the RTKL, 65 P.S. § § 67.708(b)(1)(ii), (6), (11), (26). (Reproduced Record (R.R.) at 7a-9a.)
Requestor appealed to the OOR, arguing that the requested records document the receipt or use of agency funds, that none of the Department's purported exemptions are applicable, and that the OOR has previously directed the disclosure of the identical contract, unredacted, in Gerber v. Pennsylvania Department of Corrections,
OOR Dkt. AP 2014-0186 (filed March 10, 2014). By letter dated May 21, 2014, the OOR acknowledged receipt of the appeal, advised the parties that they may submit further information, including affidavits, and legal argument within seven days, and noted the Department's obligation to notify a third party that it may request to participate, if the requested records contain confidential, proprietary, or trademarked records. As noted above, the Department alleged that the requested records contained trade secrets or confidential proprietary information as support for its redaction of the contract. Nevertheless, the Department failed to notify Wexford of the pending appeal before the OOR.
By final determination dated June 20, 2014, the OOR granted Requestor's appeal and directed the Department to provide Requestor with the unredacted Wexford contract. The OOR concluded that, based upon its prior decision in Gerber, the Department was collaterally estopped from relitigating the issue of whether the Wexford contract is subject to redaction. The OOR noted that it only decided the issue of the sufficiency of the stated grounds for appeal in Gerber, but stated that collateral estoppel " applies not only to matters decided, but also to matters that could have, or should have, been raised and decided in an earlier action." (OOR Final Determination at 5, citing Bell v. Township of Spring Brook, 30 A.3d 554, 558 (Pa.Cmwlth. 2011)). The OOR stated that the Department had the full opportunity in Gerber to submit evidence and argument in support of the claimed exemptions but instead focused on the sufficiency of the appeal.
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 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.
On appeal, the Department argues that the OOR erred in concluding that it was collaterally estopped from putting forth evidence regarding its asserted exemptions. We disagree.
" Collateral estoppel bars a claim raised in a subsequent action where (1) an issue decided in a prior action is identical to one presented in a later action, (2) the prior action resulted in a final judgment on the merits, (3) the party against whom collateral estoppel is asserted was a party to the prior action or in privity with a party to the prior action, and (4) the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior action." Pennsylvania Social Services Union, Local 688 v. Commonwealth of Pennsylvania, 59 A.3d 1136, 1143-44 (Pa.Cmwlth. 2012).
Citing Scott v. Delaware Valley Regional Planning Commission, 56 A.3d 40 (Pa.Cmwlth. 2012), the Department correctly notes that this Court is not bound by the OOR's decision in Gerber. In Scott, John Scott sought certain email records from the Delaware Valley Regional Planning Commission (DVRPC). The DVRPC denied the request as overly broad and claimed that the records were exempt as pre-decisional deliberations under section 708(b)(10) of the RTKL, 65 P.S. § 67.708(b)(10). The DVRPC further alleged that it was not a Commonwealth agency and, hence, was not subject to the RTKL. Following an in camera inspection ...