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United States District Court, S.D. California
June 19, 2014
ROBERT DOUGLAS, Plaintiff,v.MICHAEL SMELOSKY, WARDEN; et al., Defendants.
REPORT AND RECOMMENDATION DENYING IN PART AND GRANTING IN PART DEFENDANT VALENZUELA'S MOTION FOR SUMMARY JUDGMENT [ECF No. 66.]
BERNARD G. SKOMAL, Magistrate Judge.
Plaintiff Robert Douglas, a state prisoner proceeding pro se and in forma pauperis, filed a Complaint on July 12, 2010, pursuant to 42 U.S.C. §1983 against Defendants Smelosky, Walker, and Valenzuela. ("Compl.", ECF No. 1.) Following the District Court's adoption of the Magistrate Judge's June 17, 2011 Report and Recommendation on Defendants' motion to dismiss, only Plaintiff's claim for violation of his Eighth Amendment right to be free from cruel and unusual punishment against Defendant Lieutenant Valenzuela in his individual capacity survived.[1] ( See ECF No. 18 at 3.) Specifically, Plaintiff's Complaint alleges Defendant Valenzuela violated his Eighth Amendment right to be free from cruel and unusual punishment when Valenzuela locked Plaintiff in an unventilated hot van and allowed him to be forced, bare-chested, against a hot wall by another guard. (ECF. No. 1.)
On January 30, 2014, Defendant Valenzuela filed a motion for summary judgment.[2] (ECF No. 66.) Plaintiff filed a response in opposition on March 28, 2014. (ECF. No. 69.) Defendant Valenzuela did not file a reply. This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation ("R&R"). For the reasons set forth below, the Court RECOMMENDS that Defendant Valenzuela's motion for summary judgment be DENIED IN PART and GRANTED IN PART.
On September 30, 2011, Defendant Valenzuela filed an answer to the Complaint. (ECF. No. 20.) On July 20, 2012, Defendant Valenzuela filed a motion for summary judgment, which was later withdrawn to allow Plaintiff to present supplemental evidence and conduct additional discovery. (ECF. Nos. 41, 52, 53 and 55.) The supplemental evidence that Plaintiff submitted for the Court's consideration included a weather report[3] and a letter.[4] On March 11, 2013, the Court issued an order accepting the filing of these documents. (ECF No. 56.)
On June 13, 2013, Plaintiff filed a second motion for leave to file supplemental documents. (ECF No. 58.) In the second motion, Plaintiff attached an interview transcript from a KGTV ABC 10 news segment.[5] ( Id. ) The transcript recounts an interview between a reporter and an unidentified prison guard who was working at Centinela State Prison on the day in question.[6] ( Id. ) On June 17, 2013, the Court ordered Defendant Valenzuela to respond to Plaintiff's second request for additional discovery and motion for leave to file supplemental documents. (ECF No. 59.) On June 24, 2013, Defendant Valenzuela filed a response in opposition to Plaintiff's motion for leave to submit supplemental documents objecting to the transcript on the grounds of foundation, relevance, hearsay, and improper opinion testimony. (ECF No. 60.)
On September 30, 2013, the Court issued an order re-opening discovery for a limited period of time and requiring Defendant to withdraw their pending motion for summary judgment without prejudice to refiling after the close of the new discovery period. (ECF. No. 61.) Defendant complied (ECF No. 62), and on January 30, 2014 filed a new motion for summary judgment which is the subject of the instant Report and Recommendation. (ECF No. 66.)
The Court has reviewed the parties' briefing and exhibits and finds the following facts are undisputed:
A. Undisputed Facts
On June 29, 2008, a large race-riot involving approximately 105 Black and Hispanic inmates occurred in Facility A at Centinela State Prison. (ECF No. 41-3.) As a result of the riot, all inmates in Facility A were placed on a modified program (commonly referred to as a "lock-down") and prison personnel performed a large-scale investigation. ( Id. at 4.) The investigation included a thorough cell-by-cell search of every housing unit in Facility A. ( Id. ) Facility A is so large that this search required officers from a nearby prison to assist, and the search took a full day to complete. ( Id. ) During the search, Plaintiff was housed in Facility A in building A2 at Centinela State Prison. ( Id. at 5.) On July 8, 2008, housing unit A2 was searched from 08:30 to 17:00 hours. ( Id. at 6.)
The July 8, 2008, search required a specialized Crisis Response Team ("CRT") to provide safety and security in the prison housing unit. ( Id. at 8.) Defendant Valenzuela was the tactical leader for this CRT. ( Id. ) In his capacity as tactical leader, Defendant Valenzuela supervised the CRT officers during the search. ( Id. ) The officers were responsible for individually escorting all inmates from their cells to a staging area located outside the building and then back inside again. ( Id. at 9.) The Investigative Services Unit ("ISU") assisted with searching the inmate's cells, and gang investigators assisted by searching, photographing, and interviewing inmates in an outside staging area. ( Id. ) Defendant Valenzuela's duties on July 8, 2008, included maintaining the overall safety and security of inmates, the safety of the staff and officers, as well as escorting inmates in and out of the building, handling inmate disciplinary issues as they arose, and supervising the members of the CRT unit. ( Id. at 11.)
B. The Facts in Dispute
The parties offer different versions of the following events, which occurred on the day of the search.
I. Defendant's Version
On July 8, 2008, an officer notified Defendant Valenzuela that Plaintiff refused to follow instructions and was complaining about the search. (ECF No. 66-3 at 12.) Defendant asked the officer to bring Plaintiff outside so that Defendant could verbally warn and counsel Plaintiff regarding his behavior. ( Id. ) Defendant told Plaintiff to calm down and follow orders because Plaintiff's actions were a safety and security risk. ( Id. at 13.) Plaintiff responded positively, said he understood, and Defendant Valenzuela ordered the officer to escort Plaintiff back inside. ( Id. )
Sometime later, an officer notified Defendant Valenzuela that Plaintiff again refused to cooperate. ( Id. at 14.) According to Defendant, Plaintiff was questioning the search in front of other inmates, being loud, and turning to watch the search despite orders not to do so. ( Id. ) Defendant again counseled Plaintiff about his behavior and gave him another warning. ( Id. ) Plaintiff again seemed receptive, so Defendant told the officer to escort Plaintiff back inside. ( Id. ) At this point, Defendant Valenzuela contends that he did not force Plaintiff against any wall and does not recall seeing Plaintiff being forced against a wall. (Id. )
Later in the afternoon, someone from ISU contacted Defendant Valenzuela and told him they were going to search Plaintiff's cell again because Plaintiff and his cell-mate were yelling and throwing papers out of their cell. ( Id. at 15.) In response, Defendant instructed members of the CRT to conduct an unclothed body search of Plaintiff and his cell-mate and bring them both outside to the staging area. ( Id. ) Once outside in the staging area, Defendant Valenzuela spoke to Plaintiff, who this time, was not receptive to counseling and acted agitated, hostile and disruptive. ( Id. at 16.)
According to Defendant Valenzuela, Plaintiff's behavior began to disrupt the gang investigations taking place in this same staging area. ( Id. ) Defendant feared Plaintiff's behavior would further incite the other inmates to "act up." ( Id. ) Defendant, "based on [his] training and experience, knew that [he] needed to get Plaintiff away from the area, " but could not take him inside the building because inmates were also inside the building. ( Id. ) At this time, an officer informed Defendant that there was a holding cell in a van parked behind them. ( Id. ) Defendant decided to temporarily place Plaintiff in the van hoping Plaintiff would calm down and stop inciting inmates. ( Id. at 16-17.) Defendant maintains that the van was the closest and safest containment area available.[7] ( Id. at 17.)
California Department of Corrections and Rehabilitation ("CDCR") policy requires completion of a holding cell log sheet whenever an inmate is placed in a holding cell. (ECF No. 66-3 at 20.) When Defendant placed Plaintiff in the van, Officer Reyes prepared and signed the holding cell log sheet. ( Id. at Ex. B.) Defendant Valenzuela also signed the sheet as the supervisory reviewer. ( Id. ) The sheet indicates that Plaintiff was placed in the van at 16:10 and released at 16:25, for a total of fifteen minutes spent inside. ( Id. ) The sheet also indicates that Officer Reyes checked on Plaintiff every five minutes and that Plaintiff was standing at each checkup. ( Id. ) The sheet does not indicate whether the van doors were open or closed while Plaintiff was inside. ( Id. )
Defendant Valenzuela returned to the van to speak with Plaintiff around 16:25. ( Id. at 21.) According to Defendant, Plaintiff's demeanor appeared improved and Defendant ordered an officer to return Plaintiff to his cell. ( Id. ) At this time, Defendant states that he did not mock, tease, taunt, or threaten Plaintiff, nor did he witness anyone else do the same. ( Id. ) Someone from the CRT eventually escorted Plaintiff back to the building, and sat Plaintiff down on a bench in the dayroom. ( Id. at 23.) Minutes later, Defendant saw Plaintiff slide off the bench and lie sideways on the ground. ( Id. at 24.) Defendant immediately instructed staff to sound an alarm and remove Plaintiff's restraints for treatment and examination purposes. ( Id. ) Plaintiff was taken to a medical facility and returned to the housing unit a few hours later. ( Id. )
ii. Plaintiff's Version
According to Plaintiff, the incident began when an officer accused Plaintiff of refusing to comply with direct orders on July 8, 2008. (ECF No. 1.) Because of Plaintiff's alleged disobedience, the officer escorted Plaintiff outside where the officer forced Plaintiff against the housing unit wall, bare-chested, for five to ten minutes. (ECF No. 39 at 1, 4.) The outside temperature at the time was between 100 and 110 degrees Fahrenheit and the wall would have been extremely hot. (ECF No. 55.) Plaintiff alleges that at this time, the officer, Defendant Valenzuela, and SWAT personnel all mocked him about how hot the wall was and how it must burn his chest. (ECF No. 1.) Defendant Valenzuela asked Plaintiff whether he would continue to be a problem. (ECF No. 39 at 3.) Plaintiff replied "no" and was escorted back to the building. ( Id. )
When returning to his cell, Plaintiff noticed that SWAT personnel were discarding his personal property during the search and Plaintiff brought this to the attention of Defendant Valenzuela. (ECF No. 1.) Plaintiff was again escorted outside and placed against the hot wall. ( Id. ) SWAT personnel threatened to keep Plaintiff in that position until the entire search was over. ( Id. ) Plaintiff alleges that Defendant Valenzuela was personally present while Plaintiff was forced against the hot wall. (ECF No. 39.) Plaintiff alleges that his chest was flushed red from the heat of the wall and that the pain was severe; on a scale of one to ten with ten being the worst, Plaintiff claims the pain was an eight. ( Id. )
After Plaintiff was returned to his cell for the second time, Plaintiff's cell-mate began sliding paper and trash out from under the cell door. (ECF No. 39 at 6 and ECF No. 69 at 11.) SWAT personnel came to the cell and blamed Plaintiff for the paper outside the door. ( Id. at 7.) According to Plaintiff, SWAT personnel escorted Plaintiff outside to the staging area for a third time. ( Id. No. 7.) Defendant Valenzuela first asked Plaintiff if he was taking any medication, and Plaintiff replied, "no." ( Id. ) Defendant and another officer then placed Plaintiff in a hot, parked van, with the doors closed. ( Id.; ECF No. 1.) SWAT personnel then mocked Plaintiff about how hot it must be inside the van. (ECF No. 39 at 14.) Plaintiff claims he was sweating so much that he could not see. ( Id.; ECF No. 1.) Plaintiff then heard someone outside the van asking him if he was "ok" or "still alive." (ECF No. 39 at 14.) When Plaintiff failed to respond, he was removed from the van. ( Id.; ECF No. 1.) Plaintiff estimates that he was in the van for approximately thirty to forty-five minutes. (ECF No. 39 at 10.)
Upon exiting the van, Plaintiff stumbled and required assistance getting back to the housing unit. (ECF No. 39 at 14.) Plaintiff was brought inside where he subsequently passed out and fell to the ground. (ECF No. 69 at 12.) Medical staff were called to the scene and a registered nurse took Plaintiff's vitals. (ECF No. 1.) Defendant Valenzuela asked the nurse to give him a minute with Plaintiff. ( Id. ) SWAT personnel then surrounded Plaintiff and Defendant Valenzuela asked Plaintiff what happened. ( Id. ) Plaintiff could not answer. ( Id. ) Defendant Valenzuela then began calling Plaintiff a "punk b*tch" until Plaintiff passed out. ( Id.; ECF No. 39 at 15.) Plaintiff states he is uncertain how long he was unconscious. (ECF No. 39 at 14.) Plaintiff was taken to the facility medical clinic where he remained for a few hours. (ECF No. 66-3 at 24.)
Summary judgment is proper where there is no genuine issue of material fact in dispute and the moving party has shown it is entitled to judgment as a matter of law. Bias v. Moynihan, 508 F.3d 1212, 1218 (9th Cir. 2007) (citing FED.R.CIV.P. 56©). Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, " which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting FED.R.CIV.P. 56c); Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). The "purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations omitted).
If the moving party meets its initial responsibility, the burden then shifts to the nonmoving party to establish, beyond the pleadings, that there is a genuine issue for trial. Celotex, 477 U.S. at 324; Bias, 508 F.3d at 1218. To avoid summary judgment, the non-moving party is "required to present significant, probative evidence tending to support h[is] allegations, " Bias, 508 F.3d at 1218 (citations omitted), and must point to some evidence in the record that demonstrates "a genuine issue of material fact [which], with all reasonable inferences made in the plaintiff[]'s favor, could convince a reasonable jury to find for the plaintiff[]." Reese v. Jefferson School Dist. No. 14J, 208 F.3d 736, 738 (9th Cir. 2000) (citing FED.R.CIV.P. 56; Celotex, 477 U.S. at 323; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). To "defeat a summary judgment motion..., the non-moving party may not rest upon the mere allegations or denials' in the pleadings." FED.R.CIV.P. 56(e); Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986) (opposing party cannot rest solely on conclusory allegations of fact or law). Instead, the non-moving party "must establish the existence of a genuine factual dispute on the basis of admissible evidence; bare allegations without evidentiary support are insufficient to survive summary judgment." Estate of Tucker ex rel. Tucker v. Interscope Records, Inc., 515 F.3d 1019, 1033 n.14 (9th Cir. 2008).
However, the evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255; Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999) (The nonmoving party's declaration or sworn testimony "is to be accepted as true.... [The non-movant's] evidence should not be weighed against the evidence of the [movant].") (citation omitted). All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587; Anderson, 477 U.S. at 255). At the summary judgment stage, "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Anderson, 477 U.S. at 255; Dominguez-Curry v. Nevada Transp. Dep't, 424 F.3d 1027, 1036 (9th Cir. 2005); see also Hoover v. Switlik Parachute Co., 663 F.2d 964, 968 (9th Cir. 1981) (finding district court erred in granting summary judgment when the affidavits and other evidence raised credibility issues); United States v. Two Tracts of Land in Cascade County, Montana, 5 F.3d 1360, 1362 (9th Cir. 1993) (reversing district judge's decision to grant summary judgment based upon an assessment of nonmoving party's credibility).
At the summary judgment stage, the Defendant, as the moving party, bears the burden of proving no material facts are in dispute. FED.R.CIV.P. 56. Accordingly, Defendant must demonstrate Plaintiff does not posses adequate evidence to establish he was subjected to cruel and unusual punishment in violation of the Eighth Amendment. Specifically, Plaintiff contends Defendant Valenzuela violated his Eighth Amendment right to be free from cruel and unusual punishment in two ways. First, Plaintiff alleges Defendant Valenzuela subjected him to inhumane conditions of confinement by acting with deliberate indifference towards Plaintiff's health and safety when he confined Plaintiff in a hot, unventilated van. (ECF. No. 1.) Second, Plaintiff alleges Defendant Valenzuela used excessive force in violation of the Eighth Amendment when one of his subordinates held Plaintiff against a hot wall. ( Id. ) The Court addresses each claim separately below.
A. The Hot Van Incident: Alleged Inhumane Conditions of Confinement Violation
1. Parties' Arguments
The parties agree that Plaintiff was held in a van on the day in question. The parties also agree Plaintiff needed medical attention following his confinement in the van. Defendant Valenzuela, however, maintains in his declaration that he was justified in placing Plaintiff in the van because: (1) Plaintiff was only inside the vehicle for fifteen minutes, (2) the doors were open, (3) an officer was assigned to check on Plaintiff every five minutes, and (4) Plaintiff was placed in the van for safety and security reasons. (ECF No. 66-3 at 5-6.)
Plaintiff contends Defendant Valenzuela deprived him of humane conditions of confinement and subjected him to cruel and unusual punishment by placing Plaintiff: (1) in a van for thirty to forty-five minutes, which is supported by the declaration of Plaintiff's cellmate, Lamont Stewart;[8] (2) with the doors closed; (3) in one hundred degree heat, which is supported by weather records.[9] (ECF No. 69.)
2. Standard of Review: Inhumane Conditions of Confinement
The Eighth Amendment prohibits both the imposition of cruel and unusual punishment and inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Conditions of confinement claims require extreme deprivations that are sufficiently grave to deny the minimal civilized measure of life's necessities. Hudson v. McMillian, 503 U.S. 1, 9 (1992). "An Eighth Amendment claim that a prison official has deprived [prisoners] of humane conditions of confinement must meet two requirements, one objective and one subjective." Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1994) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). The prisoner must "objectively show that he was deprived of something sufficiently serious, '" and "make a subjective showing that the deprivation occurred with deliberate indifference to [his] health or safety." Foster v. Runnels, 554 F.3d 807, 812 (9th Cir.2009) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Each requirement will be analyzed separately below.
I. The Objective Requirement: Sufficiently Serious Deprivation
Under the objective requirement, conditions of confinement must pose a substantial risk of sufficiently serious harm. Farmer, 511 U.S. at 834. The conditions of a prison may be restrictive and harsh, but officials have the duty to provide prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). The Court may consider the circumstances, nature, and duration of the deprivation to determine whether the risk of harm is sufficiently serious. Lewis, 217 F.3d at 731.
Defendant Valenzuela states he placed Plaintiff in the van, with the doors opened, for only fifteen minutes. (Doc. No. 66-3 at 22.) Defendant submitted his declaration and the holding cell log sheet[10] as evidence to support his position. (Doc. No. 66-3; Exh. B at 20.) Plaintiff, however, contends Defendant Valenzuela locked him in a van for thirty to forty-five minutes and that the van doors were closed. (ECF No. 69. at 11-12.) Plaintiff was only removed from the van after he failed to respond to an unidentified guard who asked from outside the van whether Plaintiff was "still alive." ( Id. ) Plaintiff submitted and signed under the penalty of perjury a response in opposition (ECF No. 69) to Defendant's motion for summary judgment and a response to Defendant's interrogatories (ECF No. 39 at 4), both of which support Plaintiff's account of the confinement. See Fed.R.Civ.P. 56C. (explaining that in resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any.) Plaintiff also submitted a weather report from the day in question which demonstrates the outside temperature at the time of the incident was one hundred eleven degrees. (ECF. No. 69.) A reasonable inference to be drawn from this evidence suggests that the van's internal temperature may have been even hotter regardless of whether the van's doors were closed or open. See Matsuhita, 475 U.S. at 587. Plaintiff further submitted the declaration of his cell mate, which states Plaintiff was in the van for forty minutes, not fifteen - and that Plaintiff was yelling out for help. (ECF. No. 69 at 11.)
Extreme heat conditions can be sufficiently serious to satisfy the objective requirement of an Eighth Amendment claim. See Maldonado v. Youngblood, 2013 WL 322089, *4 (E.D. Cal.) (court found locking prisoner in a transportation vehicle for three to four hours with no ventilation and no water, with temperatures allegedly reaching ninety degrees inside the vehicle constituted a substantial risk of serious harm); See also Pitcher v. Wackenhut Corp., 2007 WL 2695407 *6 (D. Nev.) (where prisoner was placed in a van holding cell with temperatures exceeding one hundred degrees, court found the risk of harm, especially the allegation of dangerously high temperatures in the van, sufficiently serious to satisfy the objective requirement of an Eighth Amendment claim.)
At the summary judgment stage, the moving party must establish that there is an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Defendant attempts to do so by providing a sworn declaration and the holding cell log sheet to contradict Plaintiff's account of his confinement in the van. Plaintiff, as the non-moving party, must establish, with evidence beyond the pleadings, that there is a genuine issue of material fact. Celotex, 477 U.S. at 324. Plaintiff submitted his response in opposition to Defendant's motion for summary judgment and his response to Defendant's interrogatories. Plaintiff also submitted the sworn declaration of his cell mate. These submissions contradict Defendant's account of the confinement and establish a genuine issue of material fact. Further, it is undisputed that Plaintiff needed medical attention following his confinement in the van. A jury could reasonably infer that Plaintiff's need for medical assistant is consistent with heat exhaustion and is supported by the weather report submitted by Plaintiff. At this stage, the evidence of the nonmoving party is to be believed. Anderson, 477 U.S. at 255. Further, the nonmoving party's declarations or sworn testimony are to be accepted as true. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). Accepting Plaintiff's evidence as true, which the Court must do, IT IS RECOMMENDED that the Court find there is a genuine issue of material fact for the jury to decide on the issue of whether Plaintiff faced a substantial risk of serious harm as required by the objective requirement of his Eighth Amendment claim.
ii. The Subjective Requirement: Deliberate Indifference
"The subjective requirement, relating to the defendant's state of mind, requires deliberate indifference." Allen, 48 F.3d at 1087. "Deliberate indifference" is evidenced only when "the official knows of and disregards an excessive risk to [Plaintiff's] health or safety; the official must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837. Whether an official had the requisite knowledge is a question of fact subject to demonstration in the usual ways, and a fact finder may conclude that the official knew of a substantial risk from the very fact that it was obvious. Farmer, 511 U.S. at 826.
Defendant argues he did not act with deliberate indifference because his actions had a penological justification and were necessary to maintain order. (Doc. No. 66-1.) Defendant argues that he made the decision to place Plaintiff in the van, not as a punishment, but to avert a safety threat. ( Id. at 14.) Further, Defendant contends Plaintiff had been disruptive all day and the van was the closest and safest place to hold Plaintiff until Plaintiff calmed down. ( Id. ) Defendant, however, does not argue he lacked knowledge of the risk of heat exposure, nor does he argue that he did not disregard the risk. Defendant only argues his actions were necessary and justified. (Doc. No. 66-1.)
Plaintiff attacks Defendant's justification argument and claims he was placed in the hot van as a form of torture and cruel punishment. (ECF No. 69 at 5.) Plaintiff refers to the incident as the "bake-em, time-out" treatment. (ECF No. 52.) As noted above, Plaintiff submitted a weather report from the day in question which indicates that the outside temperature at the time of the incident was one hundred and eleven degrees. Plaintiff argues Defendant Valenzuela knew, or at least should have known, based on Defendant's training and experience, that locking Plaintiff in such a hot van would lead to serious harm. (Doc. No. 69 at 5.) Plaintiff argues even the K-9 unit will not leave their dogs in a hot car for five minutes in such extreme heat. (Doc. No. 69 at 5.)
The essential inquiry here concerns Defendant's knowledge of the risk of harm to the Plaintiff and a subsequent disregard of that risk. In his declaration, Defendant acknowledges the extreme heat on the day of the incident. (ECF No. 66-3.) Defendant also argues he left the van door open, ordered a guard to check on Plaintiff every five minutes and only held Plaintiff in the van for a total of fifteen minutes. These precautionary actions performed by Defendant suggest he knew the internal temperature of the van posed a substantial risk of serious harm because of the extreme heat of the day. A reasonable jury could conclude from Defendant's actions that he knew the van was dangerous and disregarded the risk by ordering Plaintiff into the van anyway. A reasonable jury could therefore infer Defendant acted with deliberate indifference. Because the issue of Defendant's knowledge of the risk posed by extreme heat and deliberate indifference to that risk is one for the jury to decide, summary judgment is not proper at this time. Therefore, the Court RECOMMENDS that Defendant's motion for summary judgment as to Plaintiff's Eighth Amendment conditions of confinement claim be DENIED.
B. The Hot Wall Incident - Alleged Excessive Force Violation
i. Supervisory Liability
To state a claim for the use of excessive force in violation of the Eighth Amendment, Plaintiff must show that prison officials applied force "maliciously and sadistically to cause harm" and not in "good faith to maintain or restore discipline." Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). Typically, Defendants only incur liability for excessive force under section 1983 if they personally participate in the alleged event. Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir.1979). A supervisor, however, can be "liable for constitutional violations of his subordinates" without personal participation if the supervisor "directed the violations, or knew of the violations and failed to act to prevent them." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
Defendant Valenzuela was the supervisor of the CRT; that fact is undisputed. (ECF. No. 66 at 8.) The parties do dispute, however, whether Defendant was present and thus knew and failed to prevent Plaintiff from being forced against a hot wall. Defendant claims he has no recollection of seeing Plaintiff pushed up against a wall and supports this position with a statement in his declaration. (ECF No. 66 at 14.) Plaintiff alleges Defendant Valenzuela was present when he was forced into the wall and failed to stop this alleged excessive force. (ECF No. 39 at 3.) Plaintiff's position is supported by his statement in response to Defendant's interrogatories. ( Id. ) Although Defendant Valenzuela and Plaintiff offer different versions of the wall incidents, this dispute is immaterial and unworthy of consideration by a jury unless Plaintiff has provided evidence to demonstrate Defendant's subordinate applied malicious and sadistic force as required for an Eighth Amendment violation.
ii. Standard of Review - Malicious and Sadistic Force
To determine whether the use of force was malicious and sadistic, a court may consider: (1) the extent of injury suffered by a prisoner; (2) the need for application of force; (3) the relationship between that need and the amount of force used; (4) the threat reasonably perceived by the responsible officials; and (5) any efforts made to temper the severity of a forceful response. Hudson, 503 U.S. at 7 (citing Whitley v. Albers, 475 U.S. 312, 321 (1986)).
First, the court looks at the extent of the injury suffered by the Plaintiff. It is undisputed that the extent of Plaintiff's injury was a "flush-red" chest. (ECF No. 39 at Interrogatory Response No. 5.) This is a minor injury and Plaintiff has not provided any medical evidence in opposition to the motion for summary judgment to indicate that he suffered serious harm, such as burns, from being forced against the wall. See Hudson, 503 U.S. at 9-10 (explaining the Eighth Amendment's prohibition of cruel and unusual punishment necessarily excludes from constitutional recognition de minimis uses of physical force.) Accordingly, the undisputed evidence of minimal injury weighs in favor of finding there was no use of malicious and sadistic force.
Second, the court looks at the need for the use of force. Defendant states Plaintiff's disruptive behavior necessitated placement against the wall. (ECF. No. 66-1 at pp. 12-13.) Plaintiff does not dispute he was escorted outside due to perceived unruly behavior. (ECF. No. 39 at Interrogatory No. 3.) Because the undisputed evidence indicates there was an admitted dispute between Plaintiff and the prison guards, this factor weighs in favor of finding there was a need for the application of force. See LeMaire v. Maass, 12 F.3d 1444, 1458 (9th Cir. 1993) (concluding that as long as an inmate "engages in violent and disruptive behavior, prison officials are authorized and indeed required to take appropriate measures to maintain prison order and discipline and protect staff and other prisoners from such violent inmates").
Third, the court looks at the relationship between the force needed and the force used. Case law indicates the applied force must be balanced against the need for that force. Alexander v. City and County of San Francisco, 29 F.3d 1355, 1367 (9th Cir.1994). Defendant argues Plaintiff was placed against the wall to restore order. (ECF. No. 66-1 at p. 13.) Plaintiff states the pain of being placed against the hot wall was an eight on a scale of one to ten. (ECF. No. 39 at Interrogatory No. 5.) Plaintiff also admits he was forced against the wall for five to ten minutes. ( Id. at Interrogatory No. 4.) The force applied was painful to Plaintiff. However, it was not prolonged. The brevity of the force applied weighs in favor of finding the five-to-ten-minute use of force was balanced with the need for force.
Fourth, the court looks at the threat perceived by the responsible officials. Defendant argues the setting was tense, as inmates were all escorted outside in order for prison officials to search their cells. (Doc. No. 66-3.) Plaintiff does not dispute that inmates were moved outside so that their cells could be searched. [ECF No. 69 at 11.] It was not unreasonable for prison officials to view uncooperative inmates outside of their cells as a threat to prison security. Accordingly, this factor weighs in favor of finding the existence of a reasonably perceived threat.
Finally, the court looks at whether officials took any effort to temper the severity of the force. Defendant Valenzuela argues that he does not recall seeing Plaintiff being placed against a wall, and that he did not put Plaintiff against a wall. [ECF No. 66-3 at p. 4.] As mentioned in the supervisory liability section above, Plaintiff states Defendant Valenzuela was present at the time Plaintiff was pushed into a wall and did nothing to prevent it. [ECF No. 39 at Interrogatory No. 2.] Because Defendant Valenzuela was either: (1) not present to temper the severity of force, or (2) present and failed to temper the severity of the force used, this factor weighs against finding there was an effort to temper the severity of the force used.
Undisputed evidence for four of the five factors used to assess the use of force weigh in favor of finding that the force used against Plaintiff was not malicious and sadistic. As explained above: the impact of the wall on Plaintiff's chest was minimal; there was a need for force as Plaintiff has admitted he was disagreeable; Plaintiff states he was only held against the wall for five to ten minutes; and the force at issue was applied to Plaintiff during a prison-wide lock down and cell search. In order for an Eighth Amendment excessive force case to go to the jury, the evidence must go "beyond a mere dispute over the reasonableness of a particular use of force or the existence of arguably superior alternatives" to support "a reliable inference of wantonness in the infliction of pain." Whitley v. Albers, 475 U.S. 312, 322 (1986). There is no genuine issue of material fact presented that would allow a reasonable jury to conclude Plaintiff was placed against the wall maliciously and sadistically. The Court RECOMMENDS that Defendant's motion for summary judgment be GRANTED with respect to Plaintiff's claim for excessive force against Defendant Valenzuela.
C. Qualified Immunity
Defendant Valenzuela also argues he is entitled to qualified immunity. The defense of qualified immunity protects government officials from liability insofar as the official's conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A court considering a claim of qualified immunity must determine: (1) whether, in the light most favorable to plaintiff, the facts alleged show the official's conduct violated a constitutional right; and (2) whether, in light of the specific context of the case, such right was sufficiently clear that a reasonable official would have understood that his conduct violated the right. Saucier v. Katz, 533 U.S. 194, 201-02 (2001).
1. The Hot Van Incident
Viewing the evidence in the light most favorable to Plaintiff, it has been has recommended, as detailed in Section A above, that the Court find triable issues of material fact exist as to: (1) whether the conditions inside the box van's holding cell were sufficiently serious to meet the objective component of an Eighth Amendment violation; and (2) whether Defendant acted with deliberate indifference to Plaintiff's health and safety when he confined Plaintiff in the box van's holding cell. Furthermore, established law makes clear that a reasonable officer, who was admittedly aware of the day's extreme temperatures, would have understood that his conduct violated Plaintiff's eighth amendment right. See Hope v. Pelzer, 536 U.S. 730, 738 (2002) (holding that handcuffing an inmate to a hitching post and inducing "unnecessary exposure to the heat of the sun" violated clearly established rights under the Eighth Amendment); see e.g. Graves v. Arpaio, 623 F.3d 1043, 1049 (9th Cir. 2010) (recognizing that the "Eighth Amendment requires that the temperature of the areas in which pre-trial detainees are held or housed does not threaten their health or safety.")
It is therefore recommended that Defendant's request for qualified immunity on Plaintiff's conditions of confinement claim be DENIED.
2. The Hot Wall Incident
The Court has recommended, as detailed in Section B above, that Defendant's motion for summary judgment on the issue of excessive force be granted. Therefore, the Court need not reach the question of whether Defendant is entitled to qualified immunity on the use of excessive force. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001) (explaining that if the facts alleged do not show the officer's conduct violated a constitutional right, the inquiry is over.)
This report and recommendation of the undersigned Magistrate Judge is submitted to the United States District Judge assigned to this case, pursuant to the provision of 28 U.S.C. section 636(b)(1). For the reasons set forth above, it is RECOMMENDED that Defendant's Motion for Summary Judgment be DENIED IN PART and GRANTED IN PART.
IT IS ORDERED that no later than July 7, 2014 any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation."
IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than July 21, 2014. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998).
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Del Conte and Visiting Spaniard Heat Up Sunnyside Boîte
What's sexy about the spectacle of bullfighting is the tension among the matador, the bull, and the audiencegore and animal cruelty notwithstanding. What's sexy about the tension of Andrea Del Conte's rapturous 10-person Flamenco Fiesta at the modest Thalia in Sunnyside is that here the theater's the bullring, the dancers are the matadors, and we're the bulls. Oscar Valero, special guest dancer from Valencia, displays inordinately swift footwork, teasing the fine line between theatricality and control. When Del Conte takes the stage midshow to perform her coy solo, wielding castanets and wearing a splendid white-ruffled, long-tailed gown, this virtual bullring feels more like a cabaret. Vocalist Alfonso Cid leads the flamenco quartet; his voice, characteristically resonant and pained, could cut flesh.
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Hotel is clean, staff is friendly, breakfast is very good. Beds are comfortable. Hotel is very quiet. Parking is easy. Rooms are large. Not much in the immediate vicinity to eat or drink. Prepare to drive for meals. Plenty of things within 10 minutes just not much in walking distance.
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June 3, 2009
DENIS LUKES AND WEST PENN ALLEGHENY HEALTH SYSTEM, PETITIONERSv.DEPARTMENT OF PUBLIC WELFARE, RESPONDENT
Argued: October 14, 2008
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.
Denis Lukes (Lukes) and West Penn Allegheny Health System (WPAHS) (collectively, Petitioners) petition for review of an order of the order of the Chief Administrative Law Judge (CALJ) of the Department of Public Welfare's (DPW) Bureau of Hearings and Appeals (Bureau), which denied Petitioners' exceptions from a DPW decision denying Petitioners' request for information under what was commonly referred to as the Right-to-Know Law (Law)*fn1. We reverse.
Lukes is the Vice President of Finance of WPAHS, which is a non- profit healthcare provider comprised of six hospitals located in western Pennsylvania. On April 4, 2007, Petitioners submitted a written right-to-know request with DPW. The right-to-know request sought the production of Provider Agreements between the University of Pittsburgh Medical Center Health Plan, Inc. (Health Plan) and hospitals affiliated with the University of Pittsburgh Medical Center (UPMC)*fn2 entered into for the purpose of administering a DPW Medicaid managed care program known as the HealthChoices Program. DPW denied the request. Petitioners filed exceptions with the Bureau and requested a hearing. The Health Plan intervened. An evidentiary hearing was held before the Bureau, with the Bureau's CALJ presiding.
Based upon the testimony and evidence presented at the hearing, the CALJ made the following relevant findings. The Health Plan, which is a separate corporation from UPMC, is a managed care organization (MCO) and operates a Medicaid Health Maintenance Organization (HMO) separately incorporated as UPMC for You, Inc.. The Health Plan is not an agency of the Commonwealth. The right-to-know request was sufficiently specific to enable the agency to ascertain which records were being requested; the documents requested exist and are in the possession of the Health Plan.
DPW is an agency of the Commonwealth and the single state agency responsible for administering the Commonwealth's Medical Assistance (also referred to as Medicaid) program. The Medical Assistance program is a cooperative federal-state program through which various healthcare services are provided to those who qualify. The HealthChoices Program is the Commonwealth's managed care program for Medical Assistance recipients. DPW administers the HealthChoices Program through a series of HealthChoices Agreements with Medicaid MCOs and/or Medicaid HMOs. Pursuant to these contracts, the Health Plan agrees to pay the providers negotiated rates for medical services rendered to Medicaid MCO/HMO recipients.
On July 1, 2006, DPW entered into a HealthChoices Agreement with the Health Plan to participate as a Medicaid MCO. DPW agreed to make payments to the Health Plan using per member month rates. The Health Plan, in turn, administers benefits to Medicaid enrollees. The Health Plan agreed to enroll Medical Assistance recipients as members and to provide medically necessary services to those members. The Health Plan had separate Provider Agreements with different hospitals to provide those services to Medicaid recipients; ten of these hospitals are subject to Petitioners' right-to-know request. The Health Plan entered into contracts with only two of the six WPAHS hospitals.
The HealthChoices Agreement between DPW and the Health Plan states that "the relationship between DPW and the Contractor is that of independent contracting parties. The Contractors, its employees, services, agents, and representatives shall not be considered and shall not hold themselves out as the employees, servants, agents or representatives of the Department or the Commonwealth of Pennsylvania." Reproduced Record (R.R.) at 488a. The HealthChoices Agreement does not require the Health Plan to enter into contracts with any particular healthcare providers or require the Health Plan to pay any particular rates to its healthcare providers.
Pursuant to the HealthChoices Agreement, DPW pays the Health Plan a periodic capitation payment for each Medical Assistance recipient enrolled as a member of the Health Plan, whether or not the recipient actually received services during the period covered by the fee. The capitation payments are paid to the Health Plan to manage and pay for medical services and products for Medicaid enrollees. The payments made by DPW to the Health Plan are public funds. If the Health Plan was able to control costs within the level of the capitation revenue, then it would earn a profit; if not, the Health Plan would suffer a loss. The Health Plan used money it received from DPW to pay UPMC provider hospitals. The Health Plan operates its Medicaid MCO through the receipt of public and private funds, which are commingled in one account. DPW does not require segregation of capitation payments from other funding sources. Once the funds are commingled, it is impossible to determine what sources of funds paid for what expenses and/or services under the HealthChoices Agreement with DPW.
The Health Plan's Provider Agreements contain specific payment rates as well as confidentiality provisions forbidding the release of information contained therein. UPMC and the Health Plan require all employees to sign confidentiality agreements forbidding disclosure of confidential information to outside parties. The rates paid by Medicaid HMO/MCOs to providers affect the capitation payments DPW would make to the Medicaid HMO/MCOs in future years. Higher rates paid by Medicaid HMO/MCOs to its provider hospitals correlates into higher capitation payments made by DPW to Medicaid HMO/MCOs. Higher rates paid by Medicaid HMO/MCOs to its provider hospitals would increase the cost of the Medicaid program to DPW and the taxpayers of Pennsylvania.
Pursuant to the HealthChoices Agreement, DPW has the right to demand to see copies of the Provider Agreements. The Agreement also imposes a records retention policy upon the Health Plan. DPW can require the Health Plan to make available to DPW all subcontracts within five (5) days of a request. DPW has never possessed or requested the Provider Agreements between the Health Plan and their provider hospitals.
Based upon these findings, the CALJ determined that Lukes is the sole appellant; Lukes never established Pennsylvania residency and is therefore not eligible to seek public records under the Law. The CALJ further determined that the Provider Agreements are not public records because they are not "maintained" by DPW as required by the Law and because the Health Plan was not acting as an agent of DPW by paying its hospital providers for services rendered to Medicaid recipients; the Health Plan did not use public funds to pay its Medicaid service providers. Assuming the Provider Agreements are public records, the CALJ determined that the Provider Agreements contain information protected under Pennsylvania's Uniform Trade Secrets Act (Trade Secrets Act)*fn3 and are protected from disclosure under the Law.
By final order dated December 6, 2007, the CALJ affirmed DPW's denial of the right-to-know request and denied the exceptions. Petitioners then filed the instant appeal.*fn4 UPMC, the Health Plan, and UPMC For You, Inc. (collectively, Intervenors) have intervened.
On appeal, Petitioners have raised the following questions for our review:
1. Whether Petitioners have standing to seek public records under the Law.
2. Whether an agency must have immediate, physical possession of a record in order to be required to produce it under the Law.
3. Whether an agency and a private entity must have a formal agency relationship in order for documents in the private entity's possession to be deemed public records under the Law.
4. Whether an agency can transform public funds into private funds by transmitting them to a private entity for disbursement.
5. Whether contracts between a Medicaid MCO and hospitals with which it contracts regarding the use of public funds can be withheld based on an assertion that they may contain protectable trade secrets.
Petitioners assert that they have standing to seek public records under the Law and that the CALJ erred by raising the issue of residency sua sponte. We agree.
Our Supreme Court has consistently held that a court is prohibited from raising the issue of standing sua sponte. In re Nomination Petition of deYoung, 588 Pa. 194, 201, 903 A.2d 1164, 1168 (2006) (specifically abrogating Beverly Healthcare-Murrysville v. Department of Public Welfare, 828 A.2d 491 (Pa. Cmwlth. 2003), where we held that standing can be raised by the Court sua sponte if it is intertwined with subject matter jurisdiction.); see In re A.P., 589 Pa. 281, 908 A.2d 284 (2006); Payne v. Department of Correction, 582 Pa. 375, 386 n.5, 871 A.2d 795, 802 n.5 (2005); Hertzberg v. Zoning Board of Adjustment, 554 Pa. 249, 256 n.6, 721 A.2d 43, 46 n.6 (1998). Subject matter jurisdiction concerns "the competency of the court to determine controversies of the general class to which the case presented for its consideration belongs." DeYoung, 588 Pa. at 201, 903 A.2d at 1168 (quoting Heath v. Workers' Compensation Appeal Board, 580 Pa. 174, 180-81, 860 A.2d 25, 29 (2004); Strank v. Mercy Hospital of Johnstown, 376 Pa. 305, 309, 102 A.2d 170, 172 (1954)). "Whether a party has standing to maintain an action is not a jurisdictional question." DeYoung, 588 Pa. at 201, 903 A.2d at 1168 (quoting Beers v. Unemployment Compensation Board of Review, 534 Pa. 605, 611 n.6, 633 A.2d 1158, 1160 n.6 (1993)). Consequently, the CALJ in the instant case erred in raising and addressing the issue of standing on its own accord.*fn5
Petitioners contend that the CALJ erred by holding that an agency must have immediate, physical possession of a record in order to be required to produce it under the Law. We agree.
Section 2 of the Law, 65 P.S. §66.2, provides that "[e]very public record of an agency shall, at reasonable times, be open for examination and inspection by any citizen of the Commonwealth of Pennsylvania." Section 3 of the Law, 65 P.S. §66.3, provides "[a]ny citizen of the Commonwealth of Pennsylvania shall have the right to take extracts or make copies of public records.." The term "agency" refers to "[a]ny office, department, board or commission of the executive branch of the Commonwealth, any political subdivision of the Commonwealth,. or similar organization created by or pursuant to a statute which declares in substance that such organization performs or has for its purpose the performance of an essential governmental function." DPW is an "agency" of the Commonwealth for purposes of the Law.
A party asserting a right to disclosure of documents pursuant to the Law must establish that the requested documents are "public records." Safety, Agriculture, Villages and Environment, Inc. v. Delaware Valley Regional Planning Commission, 819 A.2d 1235 (Pa. Cmwlth. 2003). Pursuant to Section 1 of the Law, 65 P.S. §66.1, a "public record" is defined as:
Any account, voucher or contract dealing with the receipt or disbursement of funds by an agency or its acquisition, use or disposal of services or of supplies, materials, equipment or other property and any minute, order or decision by an agency fixing the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons: Provided, That the term "public records" shall not mean any report, communication or other paper, the publication of which would disclose the institution, progress or result of an investigation undertaken by an agency in the performance of its official duties, except those reports filed by agencies pertaining to safety and health in industrial plants; it shall not include any record, document, material, exhibit, pleading, report, memorandum or other paper, access to or the publication of which is prohibited, restricted or forbidden by statute law or order or decree of court, or which would operate to the prejudice or impairment of a person's reputation or personal security, or which would result in the loss by the Commonwealth or any of its political subdivisions or commissions or State or municipal authorities of Federal funds, excepting therefrom however the record of any conviction for any criminal act.
(Emphasis added). Act 100 added a separate definition for "record" to the Law. A "record" is defined as "[a]ny document maintained by an agency, in any form, whether public or not." Section 1 of the Law, 65 P.S. §66.1 (emphasis added). Unfortunately, the word "maintain" is not defined by the Law.
When a word is not defined by the statute, it must be interpreted in accordance with its ordinary usage. Section 1903(a) of the Statutory Construction Act of 1972 (Statutory Construction Act), 1 Pa. C.S. §1903(a). In ascertaining the common and approved usage or meaning of a word, the Court may utilize a dictionary. St. Ignatius Nursing Home v. Department of Public Welfare, 918 A.2d 838 (Pa. Cmwlth. 2007). When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. Section 1921(b) of the Statutory Construction Act, 1 Pa. C.S. §1921(b). Only when the words of a statute are ambiguous should a court seek to ascertain and effectuate the intention of the General Assembly through consideration of the various factors found in Section 1921(c). Section 1921 of the Statutory Construction Act, 1 Pa. C.S. §1921; Koken v. Reliance Ins. Co., 586 Pa. 269, 893 A.2d 70 (2006). A word is ambiguous if it is reasonably susceptible of different constructions and capable of being understood in more than one sense. Mishoe v. Erie Ins. Co., 573 Pa. 267, 824 A.2d 1153 (2003).
The CALJ determined that to "maintain" means to possess; since DPW never possessed the Provider Agreements, the documents cannot be construed as "public records" under the Law. Likewise, DPW and the Intervenors argue that the common and ordinary meaning of "maintain" is to hold, keep or possess. However, Petitioners contend that the word "maintain" does not necessarily mean to have immediate, physical possession and can mean control. Petitioners assert that the word "maintain" is subject to multiple interpretations and is therefore ambiguous.
According to Black's Law Dictionary, the term "maintain" is "variously defined". Black's Law Dictionary 953 (6th ed. 1990). Definitions that would be logical in the context of the Law include: to hold; hold or keep in an existing state or condition; hold or preserve in any particular state or condition; keep in existence or continuance; keep in good order. Id. Webster's Dictionary provides similar definitions: to keep in an existing state (as of repair, efficiency, or validity). Webster's Ninth New Collegiate Dictionary 718 (1987). While the words keep, hold, sustain, uphold are used in these sources to define "maintain", the word "possession" is not included in either of the two definitions. Yet, the dictionary sources*fn6 cited by the parties include the word "possession" in the definition of "maintain": "to have or continue to have in your possession" and "to retain possession of." DPW's Brief at 15-16.
Given the parties' differing assertions concerning the meaning of the word, and our conclusion that both sides have provided reasonable interpretations, one simply cannot reasonably say that the word "maintain," as contained in the Law, is free from all ambiguity and subject to only one construction or understanding. Accordingly, we turn to factors set forth in Section 1921(c) of the Statutory Construction Act, 1 Pa. C.S. §1921(c), to ascertain the intent of the legislature.
Pursuant to Section 1921(c) of the Statutory Construction Act, when the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters: (1) occasion and necessity for the statute; (2) circumstances under which it was enacted; (3) mischief to be remedied; (4) object to be attained; (5) former law, if any, including other statutes upon the same or similar subjects; (6) consequences of a particular interpretation; (7) contemporaneous legislative history; and (8) legislative and administrative interpretations of such statute. In evaluating all of these statutory factors, we conclude those most applicable to this appeal are the occasion and necessity for the statute, the mischief to be remedied, the consequences of a particular interpretation, former law and legislative history.
We begin with the occasion and necessity of the Law and the mischief the Law seeks to remedy. The Law is intended to assure the availability of government information to citizens of the Commonwealth by permitting access to official information. Pennsylvania State University v. State Employees' Retirement Board, 880 A.2d 757 (Pa. Cmwlth. 2005), aff'd 594 Pa. 244, 935 A.2d 530 (2007); Current Status, Inc. v. Hykel, 778 A.2d 781 (Pa. Cmwlth.), petition for allowance of appeal denied, 567 Pa. 766, 790 A.2d 1019 (2001); Arduino v. Borough of Dunmore, 720 A.2d 827, 830 (Pa. Cmwlth. 1998), appeal dismissed, 559 Pa. 415, 741 A.2d 195 (1999). The purpose of access is to keep open the doors of government, to prohibit secrets, to scrutinize the actions of public officials and to make public officials accountable in their use of public funds. Newspaper Holdings, Inc. v. New Castle Area School District, 911 A.2d 644 (Pa. Cmwlth. 2006), petition for allowance of appeal denied, 592 Pa. 776, 926 A.2d 443 (2007); Cogen, Sklar & Levick v. Commonwealth, 814 A.2d 825 (Pa. Cmwlth. 2003); Envirotest Partners v. Department of Transportation, 664 A.2d 208 (Pa. Cmwlth. 1995). The definition of a "public record" must be liberally construed so as not to unduly restrict the public access to information granted by the Law. Arduino. If a document meets the general definition of a "public record", an agency must give access to the document, unless it falls within one of the enumerated exceptions set forth in Section 1 of the Law, 65 P.S. §66.1. Id. The expenditure of public funds and the public's oversight of such conduct are of paramount importance. We, therefore, believe that a liberal construction of the word "maintain" is in keeping with the occasion and necessity of the Law and the mischief to be remedied.
We now consider the consequences of a particular interpretation. If this Court were to conclude that only documents within an agency's actual physical possession were subject to disclosure, we believe that public records could be shielded from disclosure by placing them in the hands of third parties. We do not believe the General Assembly intended to provide a loophole for agencies to conceal otherwise public records from public view. Despite our preference for a bright-line rule that actual possession would provide, such a result is not in the public's interest and is at odds with the purpose of the Law.
Alternatively, if this Court were to conclude that the word "maintain" is not limited to physical possession, but can encompass documents within an agency's control, more documents would be open to disclosure under the Law. However, disclosure would not be automatic. Rather, the right of access to public records is tempered by the definition of a "public record" contained in the Law. A more expansive interpretation would simply lead to further examination of whether a document, which is not within an agency's physical possession, is otherwise maintained by the agency, qualifies as a "public record" under the Law and is not covered by one of the exceptions.
We next turn to former law and legislative history. Citing Tribune-Review Publishing Co. v. Westmoreland County Housing Authority, 574 Pa. 661, 833 A.2d 112 (2003) and Carbondale Township v. Murray, 440 A.2d 1273 (Pa. Cmwlth. 1982), Petitioners maintain that actual possession of the public records by an agency is not required, provided that an agency has access to or can exert control over the public records; public records do not lose their public status merely because they are not in the possession of a particular agency at the time the request is made.
In Tribune-Review, a housing authority refused to provide a newspaper with access to a confidential settlement agreement between a former employee and the authority's liability insurer in a civil rights action. The authority argued that it did not authorize or sign the document at issue, nor did it ever see or possess the document, but that the attorney for its insurer possessed it. Our Supreme Court held that "lack of possession of an existing writing by the public entity at the time of a request pursuant to the [Law] is not, by itself, determinative of... whether the writing is a 'public record' subject to disclosure. A writing is within the ambit of the [Law] if it is subject to the control of the agency." Tribune-review, 574 Pa. at 671, 833 A.2d at 118 (emphasis added). If the preparation of a writing, such as a litigation settlement document, by an attorney for an agency or by an attorney-in-fact for the agency's insurer is not viewed as preparation by the agency, any public entity could thwart disclosure required by the Law by having an attorney or an insurer's attorney prepare every writing that the public entity wishes to keep confidential. Id.
Similarly, in Carbondale, a newspaper reporter requested that the township make available to him the township's cancelled checks involving the road account and payroll account. The township asserted that it could not be compelled under the Law to provide access to its cancelled checks because they were retained by the bank and were not in the township's possession. The trial court ordered the township to authorize its bank to make copies of the checks available to the reporter on the basis that the cancelled checks, although in the possession of a second entity, were still subject to the township's control. On appeal, we affirmed. Carbondale. We stated that to conclude otherwise "would be permitting any governmental body to escape public scrutiny of its records by simply alleging that it no longer has possession of its public records." Id. at 1275.
The CALJ dismissed these cases because they were brought before the enactment of Act 100 and according to the CALJ, "their precedence is suspect." It is well settled that a legislative amendment of a statute supersedes any contrary case law. See Buehl v. Horn, 728 A.2d 973 (Pa. Cmwlth. 1999). However, the cases cited by Petitioners are not contrary to Act 100. While Act 100 added the definition for "record," it did not alter the definition of a "public record." Additionally, Act 100 repealed Section 3 of the Law, 65 P.S. §66.3, which provided that citizens "shall have the right to take extracts or make copies of public records and to make photographs or photostats of the same while such records are in the possession, custody and control of the lawful custodian or his authorized deputy." (Emphasis added). While DPW argues that removal of the word "control" from the Law is a clear and unambiguous expression of legislative intent, we observe that the words "possession" and "custody" were likewise removed.
Review of the legislative history reveals that the General Assembly had no intention of changing the definition of a "public record" with the amendments created by Act 100. Statements made by legislators during the enactment process, although not dispositive of legislative intent, may be properly considered as part of the contemporaneous legislative history. Commonwealth v. Wilson, 529 Pa. 268, 275 n.4, 602 A.2d 1290, 1294 n.4 (1992), cert. denied, Aultman v. Pennsylvania, 504 U.S. 97 (1992). During the floor debate on consideration of Act 100, the principal sponsor, Representative John Maher, was specifically questioned about the new definition of "record" contained in the bill. Representative Maher responded:
The definition of "record" is essentially unchanged. The goal of this bill is not to redefine what is a public record.; the goal of this bill is to deal with the vast majority of concerns that you and I and others have likely heard from constituents when there is something which is clearly a public record that they have been denied access to. This really gets at accessing public records, not trying to redefine them. That work we must take up another day.
[Y]ou point to one of the reasons that there is a very desirable effort ahead of us to redefine what is a public record, because the answers to these sorts of questions ought to be crystal clear in statute, not depending upon 45 years' worth of case law, and because it does depend on 45 years' worth of case law, I cannot give you simple answers. We need to head ultimately towards a standard where we can have those simple answers, but today's bill is really dealing with access to those things which are public records..
House Legislative Journal, March 25, 2002 at 441.
In light of this history, we believe that the General Assembly did not intend to supersede any existing case law on what constitutes a "public record" and that the cases cited above remain good law. Additionally, we note that Tribune-Review and Carbondale have been cited in post Act 100 cases. Palmer v. Pennsylvania State Police, 928 A.2d 1165 (Pa. Cmwlth. 2007);*fn7 see Pennsylvania State University v. State Employees' Retirement Board, 594 Pa. 244, 935 A.2d 530 (2007); Newspaper Holdings; Parsons v. Urban Redevelopment Authority, 893 A.2d 164 (Pa. Cmwlth. 2006), petition for allowance of appeal denied, 591 Pa. 668, 916 A.2d 635 (2007).
It is the axiom of statutory construction that whenever possible each word in a statutory provision is to be given meaning and not treated as surplusage. Section 1921(a) of the Statutory Construction Act, 1 Pa. C.S. §1921(a). Act 100's inclusion of the definition of "record" is by no means superfluous. The thrust of Act 100 is on access and the procedure by which records can be obtained. See Sections 2 and 3.3 of the Law, 65 P.S. §66.2, §66.3-3; House Legislative Journal, March 25, 2002 at 440. Act 100 requires agencies to respond to requests for public records within 10 days. Sections 3.3 and 3.4 of the Law, 65 P.S. §§ 66.3-3 and §66.3-4. Due to the new time constraints, it is logical to require that the records requested must be "maintained" by an agency, otherwise compliance would not be possible. This is consistent with Section 2(e) of the Law, 65 P.S. §66.2(e), which provides that "an agency shall not be required to create a public record that does not currently exist or compile, maintain, format or organize a public record in a manner in which the agency does not currently compile, maintain, format or organize the public record." See Palmer; Rowland v. Public School Employees' Retirement System, 885 A.2d 621 (Pa. Cmwlth. 2005), petition for allowance of appeal denied, 587 Pa. 703, 897 A.2d 462 (2006).
After considering the various factors in order to discern the legislature's intent, we conclude that the General Assembly intended the term "maintain" to include records that are within an agency's possession, custody, or control. We find this construction embraces the goals of the Law and best upholds the interests of the general public by permitting disclosure of public records. Additionally, we find our conclusion regarding legislative intent is consistent with the New Right-to-Know Law.*fn8 Thus, the proper analysis under the Law is not whether an agency has actual, physical possession of a document at a particular moment in time, but rather whether the agency has access and can exert control over such records.
Here, the HealthChoices Agreement between DPW and the Health Plan requires the Health Plan to establish and maintain a provider network and enter Provider Agreements with hospital providers. DPW dictates terms that must be included in the Provider Agreements in order to comply with federal and state law. To ensure this compliance, DPW has a contractual right to order the Health Plan to make all Provider Agreements available to DPW "within five (5) days of a request." R.R. at 541a. The contract also imposes a records retention policy on the Health Plan. R.R. at 541a-542a; 626a-628a.
While DPW does not, at the present time, physically possess copies of the Provider Agreements, DPW has undeniable access to and can exert control over the Provider Agreements. DPW does not have the right to evade disclosure of public documents by keeping these records with the Health Plan. We, therefore, conclude that the Provider Agreements are "maintained" by DPW and are "records" for purposes of the Law. To conclude otherwise would promote the very mischief the Law seeks to remedy by permitting agencies to place records in the hands of third parties to circumvent disclosure.
Having determined that the Provider Agreements constitute "records" under the Law, we turn our inquiry to whether the Provider Agreements are "public records." Under Section 1 of the Law, a "public record" is defined as "any account, voucher or contract dealing with the receipt or disbursement of funds by an agency. and any minute, order or decision by an agency fixing the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons." 65 P.S. §66.1 (emphasis added). Basically, "public records" fall into two categories: (1) accounts, vouchers, or contracts dealing with fiscal aspects of government, and (2) minutes, orders or decisions fixing personal or property rights of a person. North Hills News Record v. Town of McCandless, 555 Pa. 51, 722 A.2d 1037 (1999). Our Supreme Court has concluded that the first category, i.e., documents dealing with the receipt or disbursement of funds, should be interpreted expansively, whereas the second category, documents "fixing" the rights of persons, is to be afforded a "somewhat narrower construct." Id. at 55, 722 A.2d at 1039. As our Supreme Court has observed, the "liberal definition" of a "public record" in Section 1 of the Law applies to a wide range of documents that contain information relating to the receipt or disbursement of public funds. Tribune-Review, 574 Pa. at 668, 833 A.2d at 116. This "category of documents should be broadly construed and need only constitute records evidencing disbursement of government money." North Hills News, 555 Pa. at 55, 722 A.2d at 1039.
Here, the CALJ determined that the Provider Agreements are not "public records" because the Health Plan is not an agency and was not acting as an agent of DPW by paying its hospital providers for services rendered to Medicaid recipients. However, Petitioners contend that a private entity does not have to have a formal agency relationship in order for documents in the private entity's possession to be deemed public records under the Law.
In order to establish the existence of an agency relationship, a party must show that: (1) there was a manifestation by the principal that the agent would act for it; (2) the agent accepted such an undertaking; and (3) the principal retained control of the endeavor. Tribune-Review, 574 Pa. at 674, 833 A.2d at 119-20. "[A]gency results only if there is an agreement for the creation of a fiduciary relationship with control by the beneficiary." Smalich v. Westfall, 440 Pa. 409, 413, 269 A.2d 476, 480 (1971). The burden of establishing an agency relationship rests with the party asserting the relationship. Basile v. H & R Block, Inc., 563 Pa. 359, 761 A.2d 1115 (2000). "An agency relationship is a fiduciary one, and the agent is subject to a duty of loyalty to act only for the principal's benefit." Sutliff v. Sutliff, 515 Pa. 393, 404, 528 A.2d 1318, 1323 (1987) (citing Restatement (Second) of Agency §387 (1958)).
In Associated Builders & Contractors, Inc. v. Pennsylvania Department of General Services, 747 A.2d 962 (Pa. Cmwlth. 2000), a party requested a copy of an agreement between a construction manager, which was retained by the Department of General Services (DGS) to oversee a building project, and the successful bidder for a construction management insurance program. DGS denied the request on the basis that DGS was not a party to the agreement between the construction manager and the insurance broker. Associated Builder. On appeal, this Court observed that if DGS had contracted directly with the insurance broker there would be no question that the contract is a public document. Id. at 967. Further, the Law does not permit an agency to avoid its obligation to disclose documents by contracting indirectly through a third party. Id. Thus, we held that the agreement was a public record subject to disclosure under the Law and we reversed DGS's decision to deny disclosure. Id.*fn9
In Dynamic Student Services v. State System of Higher Education, 548 Pa. 347, 697 A.2d 239 (1997), Dynamic Student Services (DSS), a dealer in used textbooks, requested Millersville University to supply registration and approved course material information so that it might anticipate future student needs. Millersville supplied the registration data to DSS, but refused to provide information on course materials because the school did not compile such information. DSS filed suit to obtain the information pursuant to the Law. The Supreme Court concluded that, although state universities were state agencies subject to the Law's disclosure requirements, the university was not required, under the Law, to produce information concerning required textbooks and course materials. Dynamic Student Services. The Court found that the university had no part in the ordering or selling of textbooks and neither solicited, compiled, nor retained information on course materials. Id. Ultimately, the Court concluded that despite the fact that the non-profit organization that operated the university bookstore was required to work closely with university in order to carry out its stated purposes, it did not lose its status as an independent entity for purposes of the disclosure requirements of the Law. Id.
In Tribune-Review, the Supreme Court distinguished Dynamic Student Services, explaining that the records of an independent entity do not become public records solely because of the entity's relationship with public agencies. Rather, "[a] greater involvement is required, such as the expenditure of funds or the underwriting of liability.." Tribune-Review, 574 Pa. at 678, 833 A.2d at 122. Therein, the housing authority contracted with an insurer to defend it in the event of suit. Tribune-Review. The insurer accepted the undertaking when it executed the contract for legal services with the housing authority. Id. Even though the housing authority did not agree with the insurer that the suit should be settled, the Supreme Court determined that the insurer "stood in the shoes of the housing authority in prosecuting the suit and functioned as its agent." Id. at 675, 833 A.2d at 120. An agent "holds the power to alter the legal relations between the principal and third persons...." Id. (citing Restatement (Second) of Agency §12)). The Court determined that the relationship in Tribune-Review was an entirely different relationship from that of the state universities and their independently-owned bookstores in Dynamic Student Services. Id.
We believe the instant matter is more akin to Associated Builders and Tribune-Review than Dynamic Student Services. Applying agency principals to the instant matter, we believe the Provider Agreements at issue are the product of the agency relationship between DPW and the Health Plan. The HealthChoices Agreement constitutes a manifestation by DPW that the Health Plan shall administer the HealthChoices Program and the acceptance of the undertaking by the Health Plan. Since Pennsylvania's Medical Assistance program must meet all requirements of the federal and state law*fn10 in order to acquire funding, DPW established strict controls in the HealthChoices Agreement.
Pursuant to the HealthChoices Agreement, the Health Plan must, among other things, form a provider network, execute written Provider Agreements according to terms dictated by DPW and comply with the terms and conditions set forth in the HealthChoices Agreement, including the operational and financial standards. The Health Plan must also provide DPW with unfettered access to records of the Health Plan to ensure compliance with the requirements under the Agreement and under the Law. DPW agrees to make payments to the Health Plan using per member month rates and the Health Plan administers Medicaid benefits by paying its hospital providers for services rendered to Medicaid recipients. Through Provider Agreements, the Health Plan agrees to pay hospital providers negotiated rates for medical services rendered to Medicaid enrollees.
In doing this, the Health Plan is fulfilling DPW's duties to administer the Medical Assistance program. Had DPW contracted directly with the hospitals to provide medical services, there would be no doubt that the Provider Agreements are public records subject to disclosure. While the HealthChoices Agreement between DPW and the Health Plan expressly states that the Health Plan is not to hold itself out as an agent or representative of DPW and that the relationship between the parties is that of independent contracting parties (R.R. at 488a), the fact remains that the Health Plan is performing a duty that would ordinarily be handled by DPW. In essence, the Health Plan stands in the shoes of DPW in administering the HealthChoices Program. We, therefore, conclude that the Provider Agreements are the product of the agency relationship that exists between DPW and the Health Plan.
Petitioners contend that the Provider Agreements deal with the disbursement of public funds and that the CALJ erred in determining that DPW transformed public funds into private funds by transmitting them the Health Plan for disbursement. We agree.
In Morning Call, Inc. v. Lower Saucon Township, 627 A.2d 297 (Pa. Cmwlth. 1993), a newspaper requested to examine and inspect a settlement agreement between the township and private party. The agreement settled a federal civil rights action, which was based upon the alleged conduct of the township's police officers. The terms of the settlement agreement provided for the township to pay the deductible to its insurance carrier which in turn compensated the plaintiff. The township refused the newspaper's request, asserting that the agreement was not a "public record." On appeal, we determined that the settlement agreement was a "public record" for the purposes of the Law. We explained:
Here, the Township signed the Settlement Agreement, making it obligated to pay the entire settlement if its insurance carrier failed to do so. For that reason alone, the document is a public record. Not only did the Settlement Agreement make the Township obligated to satisfy [the plaintiff's] claim if the insurance carrier did not, the Settlement Agreement obligated it to make an appropriation of public money. It required the Township to pay [the plaintiff] the Five Thousand Dollars ($5,000) that the insurance company was not obligated to pay under the terms of the insurance policy. Paying the money to the insurance carrier and not directly to [the plaintiff] does not change the fact that it was used to satisfy the Township obligation, and, 'laundering' it through the insurance carrier does not somehow change the character of those funds from public to private. Because it obligates the Township to disburse public funds to satisfy an obligation, the Settlement Agreement is a public record and subject to public inspection and copying.
Morning Call, 627 A.2d at 300-01 (emphasis added).
Likewise in Associated Builders, 747 A.2d at 965, we opined, "an agency may not shield a public document from disclosure by contracting with a third party that subsequently [disburses] the government funds. By paying through a third party, an agency does not change the character of those funds from public to private." In Sapp Roofing, a plurality of the Supreme Court held that a private roofing contractor's payroll records, which had been submitted to the government in connection with the performance of a public project, were public records under the Law. The Court reasoned that these documents qualified as public records "because they are records evidencing a disbursement by the school district." Sapp Roofing, 522 Pa. at 110, 713 A.2d at 629.
There is no question that the Medicaid funds for the HealthChoices Program derive from federal and state funds. DPW argues, however, that once the public money is received by the Health Plan, a private entity, the money belongs to the Health Plan and is private. Had the purpose of the money been simply to provide funding to private MCOs or HMOs, such as the Health Plan, we would agree that the money became private once in the hands of those entities and how the money was spent would not be subject to disclosure. However, that is not the case here. The purpose of the public money disbursed by DPW is to provide medically necessary services to Medicaid recipients. The Health Plan does not administer these services, but instead acts as an intermediary by contracting with provider hospitals to provide such services. Until the public funding reaches the intended Medicaid recipient, the money remains public.
The Intervenors argue that the commingling of funds in the account make it impossible to ascertain what particular funds are used to pay for various expenses of the Health Plan. The commingling of public funds received from DPW with the Health Plan's private funds does not alter the nature of the public funds. The Provider Agreements illustrate how public money, which is intended for Medicaid beneficiaries, is being expended in the furtherance of that goal.
DPW must ensure that public funds are properly expended and in accordance with federal and state law as well as with the terms of the HealthChoices Agreement between the Health Plan and DPW. Therefore, DPW maintains control and access to the Provider Agreements to ensure that the public funds are going toward their intended public purpose. Without such a safeguard in place, it would be impossible to determine whether the public funds were used for their intended purpose and it is conceivable that such funds could be misappropriated. As discussed above, accountability in the disbursement of public funds is a primary purpose of the Law.
The Provider Agreements reflect the expenditure of public funds for the benefit of Medicaid beneficiaries. DPW cannot circumvent the disclosure of this money trail by contracting indirectly through the Health Plan and other MCOs or HMOs. Private entities that receive or control public funds have a duty to account for their handling of those funds. Disclosure of the Provider Agreements is the only way to ensure such accountability. To shield such documents from review would circumvent the public's ability to determine how tax dollars are spent. Thus, since the Provider Agreements reflect the disbursement of public funds in a public program, we conclude that those contracts are public records under the Law.
Lastly, Petitioners contend that the CALJ erred in determining that the Provider Agreements contained information protected under the Trade Secrets Act. We agree.
The definition of "public record" states that the term "shall not include any. document. access to or the publication of which is prohibited, restricted or forbidden by statute law.. 65 P.S. §66.1. Pursuant to Section 5302 of the Trade Secrets Act, 12 Pa. C.S. §5302, a "trade secret" is defined as:
Information, including a formula, drawing, pattern, compilation including a customer list, program, device, method, technique or process that:
(1) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.
(2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
Factors relevant to determining whether information is a trade secret are the extent to which it is known outside the owner's business; extent to which it is known by employees and others within the owner's business; extent of measures taken to guard the secrecy; value of information to competitors; effort or money expended to develop the information; and ease or difficulty with which it could be properly acquired or duplicated. Iron Age Corp. v. Dvorak, 880 A.2d 657 (Pa. Super. 2005). It must be an actual secret of peculiar importance to the business and constitute competitive value to the owner. Id.
In Parsons v. Pennsylvania Higher Education Assistance Agency, 910 A.2d 177 (Pa. Cmwlth. 2006), petition for allowance of appeal denied, 591 Pa. 686, 917 A.2d 316 (2007), this Court addressed the Trade Secrets Act as an exception to the Law. Therein, the newspaper requested the vouchers for expenses for travel and for the retreats conducted by PHEAA, which PHEAA denied. On appeal, PHEAA argued the documents were trade secrets and, therefore exempt from disclosure, but acknowledged that many of the vouchers and receipts would contain no competitive information at all. We determined that the requested documents were public records under the Law. Parsons. We opined that to constitute a "trade secret" under state Trade Secrets Act, it must be an "actual secret of peculiar importance to the business and constitute competitive value to the owner." Id. at 185. We rejected PHEAA's contention that the Trade Secrets Act may serve as an exception to the Law to exempt public records containing no trade secrets at all. Id. The Law favors public access regarding any expenditure of public funds. Id. We were cognizant of the fact that some of the requested records may refer to secret information of competitive value and determined that the information may be redacted and the balance supplied under Law. Id. We retained jurisdiction over this matter should any disputes arise over the extent of any redaction. Id.
Here, there is no basis upon which to conclude that the Provider Agreements, which the Health Plan entered into with provider hospitals at the direction of DPW for the disbursement of public funds, are trade secrets. While the Intervenors presented evidence that the Provider Agreements contain confidentiality provisions and are not known outside of the Health Plan and UPMC, a party that voluntarily participates in a public program and is receiving and disbursing public funds in furtherance of that program has no legitimate basis to assert that these activities are private and should be shielded from public scrutiny. The threat of competition from WPAHS is insufficient to invoke an exemption under the Law from disclosure. We, therefore, conclude that the CALJ erred in determining that the Provider Agreements were exempt from disclosure.
Accordingly, the order of the CALJ is reversed.
AND NOW, this 3rd day of June, 2009, the order of the Chief Administrative Law Judge of the Department of Public Welfare, Bureau of Hearing and Appeals, dated December 6, 2007, is REVERSED. The Department of Public Welfare is ordered to provide Petitioners access to items described in their written right-to-know request within ten (10) business days of this order.
JAMES R. KELLEY, Senior Judge
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Blog Background - Aqua Damask with Snowflakes - 3 Column
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More free Blog Backgrounds!! Today's background is the 3 column version of the Aqua Damask and Snowflakes lay out that I posted a few days ago.
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5 comments:
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