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IN THE COMMONWEALTH COURT OF PENNSYLVANIA

IN THE MATTER OF :
: No. ______________ CD 2018
EQUITY FORWARD, :
Mary Alice Carter,
Petitioner :
: Appeal from a Final
v. : Determination of the Office of Open
: Records, at Docket No.: AP 2017-2304
PENNSYLVANIA DEPARTMENT OF :
HUMAN SERVICES, :
Respondent :
:

PETITION FOR REVIEW

Equity Forward and Mary Alice Carter petition for review of the January 22, 2018 Final

Determination of the Office of Open Records in the matter of Mary Alice Carter v. Pennsylvania

Department of Human Services, OOR Docket No. 2017-2304. In that Final Determination, the

OOR inaccurately held that the public is not entitled to access documents in possession of the

Department of Human Services, as part of a multi-million taxpayer funded grant given to a grant

recipient. In support, Petitioner assert as follows:

JURISDICTION

1. This Petitioner appeals from a determination of the OOR. Specifically, Petitioner seeks

reversal of the denial of the OOR’s Final Determination in Docket No. AP-2017-2304.

2. This Court has proper jurisdiction over this matter as a petition for review within its

appellate jurisdiction, pursuant to 42 Pa.C.S. § 763(a), and as a matter arising under the

Right-to-Know Law, pursuant to 65 P.S. § 67.1301(a).

PARTIES SEEKING REVIEW

3. The party bringing this petition is the requester, Mary Alice Carter of Equity Forward.
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4. Respondent Department of Human Services (“Department” is an administrative agency of

Pennsylvania, a “Commonwealth agency” and subject to RTKL, 65 P.S. 67.102.)

BACKGROUND

5. On September 25, 2017, the Petitioner requested, among other public records, financial

information related to a $32.5 million grant provided to Real Alternatives by the

Department.

6. On November 15, 2017, after extending its time to respond by thirty days and the Requester

agreeing to additional time, see 65 P.S. § 67.902(b)(2), the Department partially denied the

Request, arguing that the Request does not seek records under the RTKL. See 65 P.S. §

67.102. The Department also claimed that records responsive to Item 3 of the Request do

not exist, and other records contain confidential proprietary information, 65 P.S. §

67.708(b)(11).

7. On December 7, 2017, the Requester appealed to the OOR, challenging the partial denial

and stating grounds for disclosure.

8. On January 22, 2018, the OOR issued its Final Determination in the matter captioned Mary

Alice Carter v. Pennsylvania Department of Human Services, OOR Docket No. 2017-2304.

A copy of the Final Determination is attached hereto as Exhibit A.

GROUNDS FOR REVERSAL

9. The Final Determination of the Office of Open Records (“OOR”) erred by finding that the

records sought were not public financial records related to the grant issuance.
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10. The Final Determination of the OOR erred by failing to hold that, pursuant to 506(d), the

records were public records held by a third-party related to the grant issuance. 65 P.S.

67.506(d).

11. The Final Determination of the OOR erred by holding that the withheld records were not

in the constructive possession of the agency pursuant to Section 901 of the Right-to-Know

law (“RTKL”).

12. The Final Determination of the OOR erred by failing to hold that DHS abdicated its

statutory responsibility under sections 901, 903, 305 and 506(d) in responding to this

request for records under the RTKL.

13. The Final Determination of the OOR erred by not holding DHS to account for its failure to

comply with the procedural requirements of the RTKL, by first failing to conduct a good

faith effort to determine if the records requested in request No. 1, 2, and 3, were public.

65 P.S. 66.901.

14. Specifically, OOR should have held that DHS failed to meet its burden of proof because

DHS failed to enumerate one exception under the RTKL or provide any independent

legal citation or analysis in support of its denial.

15. The Final Determination of the OOR erred by accepting DHS’s unfounded and legally

unsupported position that the records are information of a private entity not subject to the

law, do not directly relate to a government function, or otherwise are protected as trade

secrets or confidential proprietary information, without any support for those assertions.

16. The Final Determination of the OOR erred by permitting DHS to assert – without legal

analysis or support – that the requested records constitute trade secrets but provides no
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analysis or support. Section 708(b)(11) exempts from disclosure “[a] record that

constitutes or reveals a trade secret.” 65 P.S. § 67.708(b)(11).

17. The Final Determination of the OOR erred by relying upon the agency director’s

attestation that the agency does not receive the requested records “in the general course of

monitoring the grant agreement,” to find that the withheld records were not in the

constructive possession of the agency pursuant to Section 901 of the Right-to-Know law

(“RTKL”).

18. The Petitioner affirmatively asserts that the OOR’s determination erred in stating that there

is no competent evidence that the additional records exist - primarily because a

government audit of September 2017 found that the Department had not exercised

sufficient oversight over Real Alternatives’ existent expenditures.

19. The Final Determination of the OOR misinterpreted Beuhl v. Office of Open Records as a

bright-line, per se holding that all contents of all contracts between government contractors

and their service providers were not “directly related” to a government function.

20. The Final Determination of the OOR erred by not analyzing the direct relationship of the

requested records to the governmental function that Real Alternatives provides, pursuant

to this Court’s instruction in UnitedHealthcare of Pennsylvania, Inc. v. Baron, 171 A.3d

943, 947 (Pa. Commw. Ct. 2017).

21. The Final Determination of the OOR erred by not acknowledging that the government

function of Real Alternatives, namely “to provide counseling, referral, and other specified

services for alternatives to abortion,” and the function of Real Alternatives under the

PDAA’s—which, according to the attestation of Mr. Bagatta was “to develop and advance

other life affirming programs both locally and nationally”— are one and the same.
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22. The Final Determination of the OOR erred by failing to consider whether the government

function was related to the records requested, instead focusing solely on the extent to which

the agency was inspecting or approving the actions of the contractor carrying out the

function on behalf of the government.

RELIEF SOUGHT

23. For the reasons set forth above, the Petitioner respectfully requests that this Court reverse

the January 22, 2018 Final Determination of the OOR, and to order the public records to

be produced. Petitioner also seeks reasonable attorney fees and costs of this litigation

pursuant to the RTKL, 65 P.S.67.1304.

Respectfully submitted,

Terry L. Mutchler, Esq.

Attorney for Petitioner
Mutchler Lyons Law
219 S. State Street
Harrisburg, PA 17101
terry.mutchler@mutchlerlyons.com
Dated: February 21, 2018 Id. No. 308052
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA

IN THE MATTER OF :
: No. ______________ CD 2018
EQUITY FORWARD
Mary Alice Carter, :
Petitioner :
: Petition for Review of the Final
v. : Determination of the Office of Open
: Records, at Docket No.: AP 2017-2304
PENNSYLVANIA DEPARTMENT OF :
HUMAN SERVICES, :
Respondent :
:

NOTICE TO PARTICIPATE

TO: REAL ALTERNATIVES OFFICE OF OPEN RECORDS

c/o Joshua Voss, Esq. Charles Rees Brown
One Liberty Place, 46th Fl Magdalene C. Zeppos
1650 Market Street 400 North Street
Philadelphia, PA 19103 Harrisburg, PA 17103
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If you intend to participate in this proceeding in the Commonwealth Court, you must serve

and file a notice of intervention under Pa.R.A.P. 1531 of the Pennsylvania Rules of Appellate

Procedure within 30 days.

Terry L. Mutchler, Esq.

DATE: February 21, 2018 Attorney for Petitioner

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

IN THE MATTER OF :
: No. ______________ CD 2018
EQUITY FORWARD
Mary Alice Carter, :
Petitioner :
: Petition for Review of the Final
v. : Determination of the Office of Open
: Records, at Docket No.: AP 2017-2304
PENNSYLVANIA DEPARTMENT OF :
HUMAN SERVICES, :
Respondent :
:

PROOF OF SERVICE

I, Terry L. Mutchler, hereby certify that on February 21, 2018, I caused the foregoing
Petition for Review to be filed with the Court, and served the same via US Mail, postage prepaid,
upon the following:

Real Alternatives Marisa Cohan, Esq.

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Kleinbard LLC Pennsylvania Dep’t of Human Services

Joshua Voss, Esq. 7th & Forster Sts 3rd Fl
One Liberty Place, 46th Fl H&W B
1650 Market Street Harrisburg, PA, 17120-0001
Philadelphia, PA 19103

Office of Open Records Andrea Bankes

Charles Rees Brown
Magdalene C. Zeppos
400 North Street
Harrisburg, PA 17103

Terry L. Mutchler, Esq.

DATE: February 21, 2018 Attorney for Petitioner