Commonwealth v. Eiseman

85 A.3d 1117

• Court: Commonwealth Court of Pennsylvania
• Decided: February 19, 2014
• Status: Published

Opinions

OPINION BY

Judge SIMPSON.

This fact-intensive Right-to-Know Law (RTKL)¹ petition for review from a final determination of the Office of Open Records (OOR) implicates rate-setting in the managed care industry.² OOR ordered disclosure of rates set by contracts related to the Department of Public Welfare’s (DPW) administration of the Medicaid program. DPW asserted the rates were exempt under the Pennsylvania Uniform Trade Secrets Act, 12 Pa.C.S. §§ 5301-5308, (Trade Secrets Act), agency regulations and exceptions under the RTKL, including Section 708(b)(ll) of the RTKL, 65 P.S. § 67.708(b)(ll), which protects confidential proprietary information and trade secrets. Five Managed Care Organizations (MCOs) submitted evidence as direct interest participants below. After a hearing, OOR reasoned these exemptions did not apply. Upon our independent review of the evidentiary record created below, this Court affirms in part and reverses in part.

I. Background

DPW administers the Medicaid program, which provides medical and dental care to low-income children, certain adults and some disabled persons in Pennsylvania. In part, the Medicaid program is funded through federal funds and administered in accordance with federal law, 42 U:S.C. §§ 1396-lS96w-5. In Southeast Pennsylvania, DPW operates Medicaid through the HealthChoices Program, contracting with five MCOs to provide services to eligible program recipients. The MCOs provide dental care almost exclusively by subcontracting with dental subcontractors (Subcontractors). Four of the five MCOs use the same Subcontractor, DentaQuest.³

DPW does not negotiate rates for dental services, or set parameters for such rates in its contracts. DPW contracts with the MCOs requiring them to ensure access to dental care to eligible recipients.

Pursuant to the RTKL, James Eiseman, Jr. of The Public Interest Law Center of Philadelphia (Requester) requested the following records from DPW:

Each and every document, including correspondence, and appendices, that sets forth any rate of payment, including but not limited to capitation rates, that DPW pays to any Medicaid HMO[⁴] to provide Medicaid coverage to recipients in Southeastern Pennsylvania, including but not limited to any document that isolates the amount per member per month DPW calculates it pays to provide dental services to Medicaid recipients under 21 years of age. [OOR referred to as Item 1.]

Each and every document including correspondence and appendices, in DPW’s possessions, [sic] custody, or control that sets forth the amount for any one or more individual dental procedure codes that any Medicaid HMO pays to provide dental services to Medicaid recipients in Southeastern Pennsylvania. [OOR referred to as Item 2.]

or (b) otherwise establishes the rate of payment by which any Medicaid HMO and/or Medicaid Dental Subcontractor compensates or has compensated dentists (and/or other providers of dental services) for the provision of dental services to Medicaid recipients in Southeastern Pennsylvania.

(emphasis added). The request is limited to the period from July 1, 2008, through June 15, 2011, and focuses on the provision of dental services.

Essentially, Item 1 of the request sought rates paid by DPW to the MCOs, per member, per month, based on annually negotiated capitation rates (Capitation Rates).⁵ Item 2 sought the rates the MCOs pay in turn primarily⁶ to Subcontractors for dental services (MCO Rates).⁷

Depicted in simplified diagram form, the relationships are generally as follows:

DPW-» MCOs-» Subcontractors-» Providers.

DPW denied the request, stating it notified the entities implicated as subjects of the Request, namely: United Healthcare of Pennsylvania, Inc. (United); Aetna Better Health, Inc. (Aetna); Health America of Pennsylvania, Inc. d/b/a CoventryCares (Coventry); Keystone Mercy Health Plan, Inc. (Keystone); and, Health Partners of Philadelphia, Inc. (Health Partners) (collectively, the MCOs). The MCOs advised DPW the records are exempt on the following grounds: the Trade Secrets Act; Section 708(b)(ll) of the RTKL (confidential proprietary information and trade secrets exception); and, other state and/or federal regulations and/or statutes. Requester appealed to OOR.

The MCOs asked to participate in the proceedings. OOR permitted the MCOs to participate and, at the MCOs’ request, authorized a hearing.

OOR designated a hearing officer to hold one of its first hearings under the RTKL.⁸ During the hearing, the MCOs submitted testimony of one fact witness each: John Sehi, then Vice President of Finance at Health Partners; Deborah Nichols, CEO at Aetna; William Morsell, Senior Vice President at Keystone; Heather Cianfrocco, President at United; and, Nancy Sirolli-Hardy, Vice-President of Operations at Coventry. The MCOs’ fact witnesses emphasized the confidentiality of the MCO Rates, both in their maintenance, and in confidentiality provisions of their upstream agreements with DPW and of their downstream agreements with Subcontractors.

In addition, Henry Miller, Ph.D., an expert in the field of health care consulting, testified. Dr. Miller testified about the formulation of MCO Rates (MCO-* Subcontractors) and the significance of competitors knowing these rates. He opined that in his more than 40 years in the industry, he has not seen instances where rate information was disclosed outside the MCOs. He also provided his expert opinion that rates MCOs pay are trade secrets and confidential proprietary information to the MCOs. He testified that disclosure of MCO Rates would reduce the value of the MCOs’ considerable investment in negotiating favorable rates. Notably, Dr. Miller did not testify about the Capitation Rates (DPW-> MCOs).

Requester did not submit testimonial evidence or affidavits.

Based on the record created by the hearing officer, an appeals officer for OOR issued a final determination granting the appeal. Eiseman/The Public Interest Law Center v. Dep’t of Pub. Welfare, OOR Dkt. No. AP 2011-1098 (Pa. OOR, filed Sept. 17, 2012). OOR reasoned none of the cited exemptions applied, and it ordered disclosure. OOR concluded the rates constituted financial records that must be disclosed, with minimal exceptions for redaction. Although the parties raised both the Trade Secrets Act and the RTKL exception protecting trade secrets, OOR only applied the trade secrets exception in Section 708(b)(ll). In deciding the records were not trade secrets, OOR relied on this Court’s holding in Lukes v. Department of Public Welfare, 976 A.2d 609 (Pa.Cmwlth.2009), which was decided under the prior Right-to-Know Law (Prior Law).⁹

The direct interest participants and DPW appealed to this Court¹⁰ in separate actions.¹¹ This Court consolidated these appeals because they challenge the same final determination, and raise common legal issues.

II. Discussion

In their joint brief, United and Coventry (collectively, United) argue OOR erred when it relied on Lukes to hold the rates are financial records. United asserts both the Capitation Rates (DPW-* MCOs) and the MCO Rates (MCO-> Subcontractors) are exempt under the Trade Secrets Act. They also argue the Trade Secrets Act should be applied separately from the exception in Section 708(b)(ll) of the RTKL. United contends the MCO Rates are also protected as confidential proprietary information under Section 708(b)(ll) of the RTKL.

In their brief, Aetna, Health Partners and Keystone (collectively, Aetna) argue OOR erred in relying on Lukes in ordering disclosure of the MCO Rates. Aetna asserts the MCOs’ evidence established the confidential proprietary exception in Section 708(b)(ll). These MCOs also argue the MCO Rates are exempt as trade secrets under the Trade Secrets Act.

DPW agrees that Lukes does not control because it was not decided under the current RTKL. Further, it argues OOR erred in failing to analyze the trade secrets exception in the RTKL separately from the Trade Secrets Act. DPW also asserts OOR ignored the potential economic value of the Capitation Rates, supported by the sizea-ble record. DPW did not address the MCO Rates in its brief.

Requester counters that this Court’s decision in Lukes compels disclosure. Requester also asserts the documents constitute “financial records” as defined in the RTKL; therefore, exceptions applicable under the RTKL are very limited. Requester further contends that petitioners did not meet their burden of proving applicable exemptions. Requester submits that neither the Trade Secrets Act, nor Section 708(b)(ll) of the RTKL protects the rates at issue.

The current RTKL contains a presumption of openness as to any records in an agency’s possession. Bowling v. Office of Open Records, — Pa. -, 75 A.3d 453 (2013). Records in possession of a Commonwealth agency are presumed to be public unless they are: (1) exempted by Section 708 of the RTKL; (2) protected by a privilege; or, (3) exempted “under any other Federal or State law or regulation or judicial order or decree.” Section 305 of the RTKL, 65 P.S. § 67.305. For a question of law under the RTKL, our scope of review is plenary. Dep’t of Corr. v. Office of Open Records, 18 A.3d 429 (Pa.Cmwlth.2011).

DPW is a Commonwealth agency as defined by the RTKL. Section 102 of the RTKL, 65 P.S. § 67.102. A Commonwealth agency bears the burden of proving a record is exempt from disclosure. Dep’t of Transp. v. Office of Open Records (Aris), 7 A.3d 329 (Pa.Cmwlth.2010). When a party with a direct interest participates before OOR, that party bears the burden of proving its asserted exemptions. Allegheny Cnty. Dep’t of Admin. Servs, v. Parsons (ASCI II), 61 A.3d 336 (Pa.Cmwlth.2013) (en banc).

There is no dispute the Capitation Rates (DPW-> MCOs) are in DPW’s possession. As there is no apparent dispute that DPW also has access to the MCO Rates (MCO-* Subcontractors), we accept for current purposes that DPW possesses the records at issue in this case.

A. Capitation Rates (DPW-> MCOs)

In Item 1, Requester seeks Capitation Rates, which are the amounts paid per member, per month or “PMPM” in the Medicaid Program. A number of pertinent facts regarding the information are undisputed. There is no dispute that the Capitation Rates are paid by DPW directly to the MCOs. The agreements between DPW and the MCOs set forth the Capitation Rates, and the payments represent taxpayer funds disbursed for services performed on behalf of a Commonwealth agency. Also, there is no dispute regarding “agency possession.” Further, there is no dispute that MCOs are contracted to perform a government function, “implementing the Commonwealth’s Medicaid program.” See Pet’r Aetna’s Reply Br. at 4.

OOR concluded the Capitation Rates are “financial records.” After analyzing the relevant statutory provisions, we agree.

1. Financial Record Status

The RTKL defines “records” in pertinent part as follows:

Information, regardless of physical form or characteristics, that documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency.

Section 102 of the RTKL, 65 P.S. § 67.102 (emphasis added).

The Capitation Rates are records within DPW’s possession that evidence its transaction of paying MCOs pursuant to the Medicaid HealthChoices Program. Significant to our discussion, the records also qualify as “financial records.” Redaction of “financial records” is precluded except under limited RTKL exceptions not raised here. In pertinent part, “financial records” are defined in Section 102 of the RTKL as “any account, voucher, or contract dealing with: (i) the receipt or disbursement of funds by an agency; or (ii) an agency’s acquisition, use or disposal of services, supplies, materials, equipment or property.” 65 P.S. § 67.102.

Section 708(c) of the RTKL, 65 P.S. § 67.708(c), provides that the exceptions in subsection 708(b) shall not apply to financial records, except certain information may be redacted under specifically enumerated exceptions. Section 708(b)(ll) of the RTKL, which protects trade secrets and confidential proprietary information, is not among the RTKL exceptions for which redaction is allowed. As a consequence, such information cannot be redacted from financial records based on the trade secrets and confidential proprietary exception in the RTKL.

After concluding the Capitation Rates are financial records, OOR completed its inquiry, reasoning that trade secrets are not exempt because the Legislature did not include Section (b)(ll) (trade secret/confidential proprietary information) among the RTKL exceptions for which redaction is allowed. Further, OOR relied on Lukes, which rejected the Trade Secrets Act as an independent defense to disclosure.

Section 708(c) precludes the operation of most RTKL exceptions to “financial records;” however, as explained below, Section 708(c) cannot dilute operation of another law that provides an independent statutory bar to disclosure. We reach this conclusion in part because the RTKL expressly recognizes the superior position of other laws, statutory or regulatory, federal or state, in barring disclosure under the RTKL.

Notably, Section 306 of the RTKL (relating to nature of document), provides: “Nothing in this act shall supersede or modify the public or nonpublic nature of a record or document established in Federal or State law, regulation or judicial order or decree.” 65 P.S. § 67.306. Further, Section 3101.1 of the RTKL provides “if the provisions of [the RTKL] regarding access to records conflict with any other federal or state law, the provisions of this act shall not apply.” 65 P.S. § 67.3101.1 (emphasis added). The Trade Secrets Act is a state law that takes precedence over other provisions in the RTKL.

Given these express provisions of the current RTKL, OOR erred in addressing trade secrets as a RTKL exception only, while discounting the stand-alone statutory basis for protection in the Trade Secrets Act.

In the course of analyzing whether the Capitation Rates are trade secrets, OOR consulted this Court’s decision in Lukes. Lukes specifically addressed the Trade Secrets Act as an exemption to disclosure under the Prior Law. Lukes involved provider agreements between HMOs and provider hospitals. While most of the opinion in Lukes addressed statutory construction of the Prior Law, the opinion also briefly reviewed whether rates in the provider agreements are protected from disclosure as trade secrets.

The Lukes Court reasoned that, “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.” Lukes, 976 A.2d at 627. In so doing, the Court emphasized the policy implications of the expenditure of public funds under contracts entered for the ultimate benefit of Medicaid recipients. OOR followed Lukes.

However, in light of the substantial differences between the current RTKL and the Prior Law, OOR erred in relying on Lukes here. This substantial difference is most obvious in the severe restriction on redaction of “financial records.”¹² We thus conclude OOR erred in relying on Lukes, and it was required to apply the Trade Secrets Act as a separate statutory defense.¹³

2. Exempt by Other Law:¹⁴ The Trade Secrets Act

To the extent the Capitation Rates constitute trade secrets, that information may be redacted in accordance with the Trade Secrets Act. The Trade Secrets Act protects against misappropriation of trade secrets, which includes disclosure without consent. 12 Pa.C.S. § 5302. This Court recognized the Trade Secrets Act as a statutory exemption from disclosure in Parsons v. Pennsylvania Higher Education Assistance Agency (PHEAA), 910 A.2d 177 (Pa.Cmwlth.2006).

Trade secrets are defined as, “[i]nformation including a formula, drawing, pattern, compilation, including a customer list, program, device, method, technique or process that:

(1) derives 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; [and]

(2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”

12 Pa.C.S. § 5302.

Pennsylvania courts confer “trade secret” status based upon the following factors: (1) the extent to which the information is known outside of the business; (2) the extent to which the information is known by employees and others in the business; (3) the extent of measures taken to guard the secrecy of the information; (4) the value of the information to his business and to competitors; (5) the amount of effort or money expended in developing the information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. See, e.g., Crum v. Bridgestone/Firestone N. Amer. Tire, 907 A.2d 578 (Pa.Super.2006) (adopting standard from Restatement (Second) of Torts § 757 (1965)). To constitute a “trade secret” under the Trade Secrets Act, it must be an “actual secret of peculiar importance to the business and constitute competitive value to the owner.” PHEAA, 910 A.2d at 185. The most critical criteria are “substantial secrecy and competitive value.” Crum.

Whether information qualifies as a “trade secret” is a highly fact-specific inquiry that cannot be distilled to a pure matter of law. Under other circumstances, we might remand to OOR to reconsider the evidence based on our guidance here. However, this case has already seen significant delays, and OOR commendably created a complete record after a full hearing where interested third parties participated. Therefore, this Court takes advantage of the extensive factual record developed below in determining whether the Capitation Rates are exempt as trade secrets by separate statute.

The record reveals little evidence of competitive value in the Capitation Rates. Dr. Miller, the health care consultant, confined his testimony to the MCO Rates. The MCOs’ fact witnesses did not identify any competitive harm from Capitation Rate disclosure, except as to DPW. For its part, DPW submitted evidence indicating that its negotiating position may be undermined by each MCO knowing the Capitation Rate agreed to by other MCOs. However, a potentially weaker negotiating position does not establish trade secret status.

Other than confidentiality provisions in its contracts, DPW makes no special effort to maintain the secrecy of Capitation Rates. DPW did not submit evidence explaining how disclosure harms the potential economic value in the Capitation Rates. Relevant to this inquiry is that DPW does not have competitors in this market; DPW is the Commonwealth agency charged with administering the Medicaid program in Pennsylvania, and is in no danger of losing market share to competitors.

Because no party proved the Capitation Rates constitute trade secrets, and no statute establishes their protected nature, DPW is required to disclose them. We thus affirm OOR as to the Capitation Rates, albeit on different grounds.

B. MCO Rates (MCO-* Subcontractors)

MCO Rates, by contrast, are not “financial records” because they are not contained in contracts of a Commonwealth agency and do not involve disbursement of funds by a Commonwealth agency.

The current RTKL refers to the source of funds in the definition of “financial records.” While MCOs may very well be disbursing funds from DPW, the statute does not use the phrase “disbursement of agency funds;” rather, the definition refers to disbursement of funds “by an agency.” 65 P.S. § 67.102 (emphasis added). DPW disburses funds in its contracts with the MCOs. In contrast, MCO Rates involve disbursement by a contractor of an agency. This is a significant distinction OOR ignored. Because MCO Rates are not disbursed “by an agency,” OOR erred in concluding MCO Rates are “financial records.”

That MCOs disbursed funds they received from DPW to their subcontractors does not render the MCOs mere conduits for public funds. Based on the language of the current RTKL, the funds lose their character as public funds once they leave an agency’s hands and enter the private sector. This is contrary to our statement in Lukes under the Prior Law. 976 A.2d at 625. To the extent that reasoning was central to the holding, Lukes it is no longer valid in cases under the current RTKL.

Because we conclude the MCO Rates are not “financial records,” we next consider the RTKL exceptions that OOR did not fully analyze based on its adherence to Lukes. Typically, we would remand to OOR to serve as fact-finder. However, the unique circumstances here, including the complexity of the case, the number of parties involved, the robust record creation by hearing, and the amount of time already transpired, encourages us to retain jurisdiction and decide the merits. As we have sufficient information to analyze the issues, and we wish to resolve these complicated matters with as much expedition as is consistent with fairness, we exercise our independent judgment based on the current record. Bowling. The following discussion constitutes our narrative findings and conclusions

Although Section 708(b)(ll) protects both trade secrets and confidential proprietary information from disclosure in the same exception, the RTKL defines these terms differently. Thus, the terms must be analyzed separately. See Office of the Governor v. Bari, 20 A.3d 634 (Pa.Cmwlth.2011).

1. Confidential Proprietary Information

The MCOs assert the MCO Rates constitute “confidential proprietary information,” which the RTKL defines as:

Commercial or financial information received by an agency: (1) which is privileged or confidential; and (2) the disclosure of which would cause substantial harm to the competitive position of the person that submitted the information. 65 P.S. § 67.102 (emphasis added). To qualify as “confidential proprietary information,” the information must meet both components of the two-part test.

a. Confidential Information

In considering whether the MCO Rates are “confidential,” we consider the efforts the parties undertook to maintain their secrecy.

The individual MCOs compete with each other for members, and they make efforts to maintain the secrecy of MCO Rates. Specifically, the MCOs provide contractual protections with confidentiality provisions in the contracts with their Subcontractors¹⁵ and providers. The MCOs guard copies of the contracts containing MCO Rates, (e.g., Health Partners keeps a single copy in its legal department; Aetna keeps copies under lock and key and limits electronic copies). MCOs also provide confidentiality training to employees to protect the records. As this record reflects the MCOs treat the MCO Rates as confidential information, the MCOs meet the first part of the test.

b. Substantial Harm to Competitive Position

i. Standard

In evaluating the “substantial harm” to “competitive position,” we acknowledge that the terms have acquired special legal significance. In particular, we consider federal case law interpreting the Freedom of Information Act, 5 U.S.C. § 552, (FOIA) and its exemption for “commercial or financial information obtained from a person.” Notably, “substantial harm to competitive position” is the identical language used in FOIA. Under federal case law, a submitter of confidential records does not need to demonstrate actual competitive harm. See Cozen O’Connor v. U.S. Dep’t of Treasury, 570 F.Supp.2d 749 (E.D.Pa.2008) (citing Pub. Citizen Health Research Grp. v. Food & Drug Admin., 704 F.2d 1280 (D.C.Cir.1983)). Potential harm may trigger protection.

In determining whether disclosure of confidential information will cause “substantial harm to the competitive position” of the person from whom the information was obtained, an entity needs to show: (1) actual competition in the relevant market; and, (2) a likelihood of substantial competitive injury if the information were released. Watkins v. U.S. Bureau of Customs & Border Prot., 643 F.3d 1189, 1194 (9th Cir.2011); GC Micro Corp. v. Def. Logistics Agency, 33 F.3d 1109, 1112 (9th Cir.1994) (adopting the standard from Nat’ Parks & Conservation Ass’n v. Morton, 498 F.2d 765 (D.C.Cir.1974)).

“Competitive harm analysis ‘is limited to harm flowing from the affirmative use of proprietary information by competitors. Competitive harm should not be taken to mean simply any injury to competitive position.’ ” Watkins, 643 F.3d at 1195 (citation omitted). The word “substantial” appears in the statute to characterize the degree of injury needed to apply this exception.

We applied the confidential proprietary information exception in Giurintano v. Department of General Services (DGS), 20 A.3d 613 (Pa.Cmwlth.2011). In Giurinta-no, the requester sought independent contractor agreements between a private company and interpreters for telephone translation services. The private company subcontracted with interpreters to provide translation services under contract with a Commonwealth agency, DGS. The private company submitted evidence that the identity of its interpreters was highly valuable proprietary information. This Court concluded that interpreter identities in subcontracts were properly redacted because the company established the list of interpreters constituted a business asset, and was confidential.

To support the confidential proprietary information exception in Giurintano, the company submitted evidence. In its affidavit, the company described the investment involved in developing a list of quality interpreters. The company explained that the identities are closely guarded. Moreover, identities were protected by using unique identifiers for each interpreter rather than names, even internally, and limiting access of the list to few employees. The company emphasized the importance of a quality list to the success of a business in the interpretation industry, such that it invested substantial resources in obtaining a list of highly skilled interpreters of over 240 languages. Notably, the founder and CEO of the company attested:

Divulging the names of [company’s] interpreters will cause great business and economic harm to [company] by allowing competitors to gain the fruits of [its] labors in identifying a vast network of interpreters offering a quality of interpretation and languages unmatched in the industry.

Giurintano, 20 A.3d at 616-17 (quoting CEO affidavit). Thus, in Giurintano, the company described the harm and described its degree.

ii. Fact Witnesses

Compared to the affidavit in Giurinta-no, the testimony of the fact witnesses here falls short. None of the fact witnesses definitively characterize the harm that is likely to result from disclosure of the MCO Rates as “substantial.” Further, in response to questions about whether competitive harm may result from disclosure, the majority of fact witnesses state that they “think” or “believe so.” See Reproduced Record (R.R.) at 521a (Keystone); 435a (Aetna).

In addition, case law does not fill this gap. The MCOs do not cite cases holding that rates paid to subcontractors in the managed care industry are proprietary information, the disclosure of which would cause substantial competitive harm. See, e.g., Wilmington Star-News v. N. Hanover Reg’l Med. Ctr., Inc., 125 N.C.App. 174, 480 S.E.2d 53 (1997) (state statute specifically exempted health care confidential competitive information, i.e., negotiated price lists, from the public records law, but protection only applied to private persons not corporations).

Here, the MCOs had to identify the competitive harm and submit evidence regarding how disclosure would cause “substantial harm” to their respective competitive positions. Facts regarding the alleged significant harm, and the relationship between the information redacted and the alleged harm, must be substantiated to support nondisclosure under Section 708(b)(ll). Giurintano.

In this case, the actual competition in the relevant market among the five MCOs is apparent. The evidence shows the market for Medicaid managed dental care is small in Southeast Pennsylvania. As the MCOs compete for market share, gain for one means loss for another. R.R. 413a, 499a, 509a. In addition, a corporate representative from each MCO testified that disclosure of the MCO Rates would impair or harm that MCO’s competitive position. However, the degree of harm is not apparent from the testimony of the MCOs’ fact witnesses.

From our review of the record, the MCOs’ fact witnesses did not explain how the harm quantifies as “substantial.” The MCOs’ fact witnesses testified as to their respective “beliefs” in the competitive harm that may result from disclosure. “Although the court need not conduct a sophisticated economic analysis of the likely effects of disclosure ... conclusory and generalized allegations of substantial competitive harm ... are unacceptable and cannot support an agency’s decision to withhold requested documents.” Watkins, 643 F.3d at 1195 (construing FOIA).

Nevertheless, the testimony of MCOs’ fact witnesses provides some support for non-disclosure. Nichols of Aetna explained the harm as follows: “Negotiating contracts is a complex process that we set multiple variables. If those rates were available to competitors or to other providers, then the sole focus becomes about how to get the best rate or the highest rate, and it — you know, it would completely change the way that the market works.” R.R. at 435a. In addition, the MCOs’ witnesses each testified about the significant time and funds invested in developing the rates.

iii. Expert Witness

Moreover, the expert testimony regarding industry practice, the highly sensitive nature of the information, and potential for substantial harm from its disclosure, tips the balance in favor of protecting MCO Rates as proprietary information. Dr. Miller’s expert testimony weighs in favor of protection.

Over Requester’s objection, the hearing officer accepted Dr. Miller, a health care consultant with 40 years’ experience in the managed care industry, to offer expert testimony. Dr. Miller testified that MCO Rates are valuable in the industry because of the investment required to maintain a competitive edge in gaining enrollees. The rates represent significant investments by each MCO, based on efficiencies, provider specialties and breadth of provider networks, quality of care, and, presumably small margins of profitability. Dr. Miller’s expert testimony regarding industry practice to maintain confidentiality of MCO Rates is persuasive. He explained the highly competitive MCO Rates reflect pricing methodologies that are an essential part of the MCOs’ business models.

Requester challenges the protected nature of the rates because many of the rates at issue are years old, and thus stale. The age of proprietary information may weigh against its protected nature. See Clark v. Prudential Ins. Co. of Amer., Civ. No. 08-6197, 2011 WL 1833355 (D.N.J., filed May 13, 2011) (unreported) (decided in context of protective order) (citing Nestle Foods Corp. v. Aetna Cas. & Sur. Co., 129 F.R.D. 483 (D.N.J.1990)). Thus, it is relevant that the MCOs submitted evidence regarding the annual fluctuation of rates based on a number of variables. The MCOs needed to show the disclosure of rate information from 2008, 2009 and 2010 contracts is likely to result in present harm.

Dr. Miller did not differentiate, Although the rates fluctuate, such that disclosure of one year’s rate does not necessarily disclose all yearly rates, there is no evidence suggesting the rate information is “stale” when it is five years old. There is only the passage of time.

Ultimately, based on the expert testimony regarding the confidential proprietary nature of MCO Rates, we hold the evidence is sufficient to meet the preponderance of the evidence standard under Section 708(a) of the RTKL, 65 P.S. § 67.708(a). Delaware Cnty. v. Schaefer/Phila. Inquirer, 45 A.3d 1149 (Pa.Cmwlth.2012) (en banc) (by a preponderance is the lowest evidentiary standard, tantamount to a more likely than not inquiry). Therefore, the MCO Rates are protected as confidential proprietary information under the trade secrets and confidential proprietary information exception in Section 708(b)(ll) of the RTKL.

2. Trade Secrets

The Trade Secrets Act defines “trade secrets” identically to the RTKL. Compare Section 102 of the RTKL, 65 P.S. § 67.102, with 12 Pa.C.S. § 5302 of the Trade Secrets Act. While we recognize these exemptions are asserted as two independent denial grounds, because the RTKL and the Trade Secrets Act employ the same definition, it is unnecessary for this Court to conduct a separate analysis of trade secret status under the RTKL exception. Cf. Office of the Governor v. Scolforo, 65 A.3d 1095 (Pa.Cmwlth.2013) (en banc) (incorporation of the privilege into the RTKL exception obviates the need to analyze the deliberative process privilege separately from the predecisional deliberative exception).

Having already held the MCO Rates are protected under the confidential proprietary information exception of the RTKL, it is not necessary to fully discuss their status as trade secrets. It is sufficient to observe that the fact witness and expert witness evidence discussed above establishes by a preponderance of the evidence the elements for trade secret status. Crum; see PHEAA.

III. Conclusion

The Capitation Rates (DPW-> MCOs). are public records evidencing a disbursement of public funds by a Commonwealth agency, DPW. They are not exempt under the Trade Secrets Act because there is no indication of competitors for DPW, and no expert testimony was proffered regarding their trade secret status. The Capitation Rates, shared among government agencies managing health care, represent an investment of time, and a potential for undermining DPW’s future negotiating position. However, that is a speculative harm, particularly as DPW is the only “game in town” as to the HealthChoices Program. In sum, we agree with the result OOR reached, although for different reasons.

As to the MCO Rates (MCO-> Subcontractors), we exercise our independent judgment based on the existing comprehensive record. Bowling. Much of the evidence from fact witnesses, while strong as to the efforts to maintain secrecy, is weak as to the “substantial harm to competitive position” component. The evidence varies among the MCOs as to how they maintain confidentiality and how they develop their rates. What is true in all cases is that the MCOs take reasonable efforts to maintain confidentiality of the MCO Rates, and they do not share them. Most persuasive was Dr. Miller’s expert testimony regarding the industry standard for strict confidentiality and the competitive harm that could result from disclosure.

The importance of the MCO Rates to each MCO’s business model, and continued financial vitality in the industry, weighs in favor of holding the information constitutes confidential proprietary information and trade secrets.

For the foregoing reasons, we affirm OOR’s final determination requiring disclosure of the Capitation Rates (DPW-> MCOs), and we reverse OOR’s determination as to the MCO Rates (MCO-> Subcontractors).

ORDER

AND NOW, this 19th day of February, 2014, the Office of Open Records’ final determination is AFFIRMED IN PART, and REVERSED IN PART in accordance with the foregoing opinion.

1 . Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.

2 . These consolidated cases were argued separately with Dental Benefit Providers, Inc. v. Eiseman, 86 A.3d 932 (Pa.Cmwlth.2014) (consolidated) (Eiseman II), as both appeals involve similar legal issues and share many parties in interest, including DPW.

3 . One of the petitioners, United Healthcare of Pennsylvania, Inc., uses Dental Benefits Providers, Inc. (DBP), a party in Eiseman II. DentaQuest is also a party in Eiseman II.

4 . Health maintenance organizations, HMOs, refer to managed care organizations here.

5 . During oral argument, counsel for Petitioners confirmed the Capitation Rates paid by DPW, per member, per month, also referred to as the PMPM rate, include all health services. The Capitation Rates do not isolate payments pertaining to dental services, which are at issue in this appeal.

6 . In limited programs involving special needs patients, certain MCOs pay providers directly, (e.g., Health Partners’ Special Smiles program). Reproduced Record (R.R.) at 327a.

7 . The MCO Rates are comprised of the rates paid to Subcontractors and rates paid directly by MCOs to providers. As Requester does not distinguish between these parties in his analysis, we collectively refer to these rates by reference to the MCOs as payers. Provider Rates paid by Subcontractors are addressed in Eiseman II.

8 .The designated hearing officer made eviden-tiary rulings, but did not submit recommended findings or any recommended decision based on the record.

9 . Formerly Act of June 21, 1957, P.L. 390, as amended, 65 PS. §§ 66.1-66.9 (repealed by RTKL).

10 . In a RTKL appeal involving a Commonwealth agency, this Court may independently review OOR’s order and substitute its own findings of facts for those of an appeals officer. Bowling v. Office of Open Records, — Pa. ——, 75 A.3d 453 (2013).

11 . United and Coventry filed an appeal (Dkt. No. 1950 C.D. 2012) and Aetna, Health Partners, and Keystone filed an appeal (Dkt. No. 1949 C.D. 2012), here consolidated.

12 .Using similar reasoning, this Court repeatedly declines to follow Lukes in resolving cases under the new RTKL. Honaman v. Lower Merion Twp., 13 A.3d 1014 (Pa.Cmwlth.2011) (distinguishing Lukes and holding records of tax collector are not records of agency, and are not reached under current RTKL because there is no contract between the tax collector and the agency); In re Silberstein, 11 A.3d 629 (Pa.Cmwlth.2011) (stating that because Lukes was decided under the former version of the RTKL, it was not controlling); Office of the Budget v. Office of Open Records, 11 A.3d 618 (Pa.Cmwlth.2011) (stating Lukes was inapposite to current case because it was decided under the Prior Law).

13 . The MCOs contend OOR raised the "financial records” basis for disclosure on its own motion, and it is, therefore, an improper basis for the final determination. We disagree. Lukes was central to OOR’s analysis and thoroughly briefed by the parties, and it implicates the financial records definition since it was decided under the Prior Law. Moreover, the parties briefed the financial record issue to this Court, so any alleged prejudice is cured.

14 . Petitioners cite the Department of Health's (DOH) HMO regulation, 28 Pa.Code § 9.602 regarding reporting requirements, as a regulatory exemption. The regulation pertains to reimbursement information submitted to DOH, not DPW. As DPW sets Capitation Rates, and there is no indication in the record that the Rates are submitted to DOH as "reimbursement information,” the regulation has no obvious application.

15 . We reject Requester’s contention that Subcontractor DentaQuest’s knowledge of four of the five MCO Rates undercuts their confidential nature. DentaQuest is not a competitor of the MCOs; rather, it is a Subcontractor. Also, it is bound to maintain secrecy of the rates of MCOs with which it contracts.