FINAL DETERMINATION

IN THE MATTER OF :
:
NICOLE BRAMBILA AND THE :
READING EAGLE, :
Requester :
:
v. : Docket No.: AP 2017-0866
:
PENNSYLVANIA DEPARTMENT OF :
HEALTH, :
Respondent :

INTRODUCTION

Nicole Brambila, a staff writer for the Reading Eagle (collectively, the Requester),

submitted a request (Request) to the Pennsylvania Department of Health (Department)

pursuant to the Right-to-Know Law (RTKL), 65 P.S. 67.101 et seq., seeking aggregated

data regarding allegations of abuse. The Department partially denied the Request, arguing that

certain information is confidential pursuant to Department regulations. The Requester appealed

to the Office of Open Records (OOR). For the reasons set forth in this Final Determination,

the appeal is denied, and the Department is not required to take any further action.

FACTUAL BACKGROUND

On March 13, 2017, the Request was filed, stating as follows:

1
 I am requesting an opportunity to inspect or obtain copies or both of aggregate
data [t]hat shows the number of PB-22 forms1 facilities filed with the Department
from 2008-2016, or for the years for which the agency is required to keep and
has kept the documentation, according to its retention schedule.

Please also provide, likewise in aggregated data, the following information:

The facility type (whether a nursing home, home health, hospital or

intermediate care facility for the mentally retarded).
County in which the facility is locatedomitting counties with three or
fewer of a particular facility type (i.e. nursing homes) in which a facility
can be identified.
Department field office in which the PB-22 form was filed.
Nature of the abuse.
Agencies notified and/or involved (whether protective services, the
departments of Aging and/or State[,] local law enforcement or the Office
of Attorney General[)].
Conclusions, whether the agency substantiated or unsubstantiated
allegations.

On March 21, 2017, the Department invoked a thirty-day extension of time to respond to the

Request.2 See 65 P.S. 67.902(b). On April 20, 2017, the Department partially denied the

Request, providing the Requester with responsive information in accordance with an earlier final

determination issued by the OOR involving the same parties and a substantially similar RTKL

request. See Brambila and the Reading Eagle v. Pa. Dept of Health, OOR Dkt. AP 2017-0042,

2017 PA O.O.R.D. LEXIS 322 (Brambila I).

On April 21, 2017, the Requester appealed to the OOR, challenging the partial denial and

stating grounds for disclosure.3 The OOR invited the parties to supplement the record, and

directed the Department to notify third parties of their ability to participate in the appeal pursuant

to 65 P.S. 67.1101(c).

1
A Provider Bulletin-22 (PB-22) reporting form must be completed and submitted to the Department following an
investigation into any allegation of abuse.
2
The Departments offices were closed on March 14, 2017 due to inclement weather. As a result, the Departments
initial response to the Request was due no later than March 21, 2017.
3
The Requester provided the OOR with an additional thirty days to issue its Final Determination in this matter. See
65 P.S. 67.1101(b)(1).

2
 On May 5, 2017, the Department submitted a position statement, reiterating that it

provided the Requester with aggregated data regarding the types of reports received by the

Department during the timeframe identified in the Request in accordance with Brambila I. The

Department also submitted various records regarding Brambila I, including a copy of the final

determination issued by the OOR and the submission made by the Department in that action.4

On May 12, 2017, the Requester submitted a position statement, stating that she modified

the Request to ensure that the confidentiality provisions within the Departments regulations

were not violated.5

LEGAL ANALYSIS

The objective of the Right to Know Law ... is to empower citizens by affording them

access to information concerning the activities of their government. SWB Yankees L.L.C. v.

Wintermantel, 45 A.3d 1029, 1041 (Pa. 2012). Further, this important open-government law is

designed to promote access to official government information in order to prohibit secrets,

scrutinize the actions of public officials and make public officials accountable for their

actions. Bowling v. Office of Open Records, 990 A.2d 813, 824 (Pa. Commw. Ct. 2010), affd

75 A.3d 453 (Pa. 2013).

The OOR is authorized to hear appeals for all Commonwealth and local agencies. See 65

P.S. 67.503(a). An appeals officer is required to review all information filed relating to the

request and may consider testimony, evidence and documents that are reasonably probative and

relevant to the matter at issue. 65 P.S. 67.1102(a)(2). An appeals officer may conduct a

4
The Departments submission from Brambila I consists of a position statement and an attestation, made under the
penalty of perjury, from Susan Williamson, the Director of the Division of Nursing Care Facilities within the
Departments Bureau of Facility Licensure and Certification.
5
The Requesters May 12, 2017 submission was received after the record had closed; however, to further develop
the record in this matter, the submission was considered. See 65 P.S. 67.1102(b)(3) (stating that the appeals
officer shall rule on procedural matters on the basis of justice, fairness and the expeditious resolution of the
dispute).

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hearing to resolve an appeal; however, the decision to hold a hearing is discretionary and non-

appealable. Id.; Giurintano v. Pa. Dept of Gen. Servs., 20 A.3d 613, 617 (Pa. Commw. Ct.

2011). Here, neither of the parties requested a hearing; however, the OOR has the requisite

information and evidence before it to properly adjudicate this matter.

The Department is a Commonwealth agency subject to the RTKL that is required to

disclose public records. 65 P.S. 67.301. Records in the possession of a Commonwealth

agency are presumed to be public, unless exempt under the RTKL or other law or protected by a

privilege, judicial order or decree. See 65 P.S. 67.305. Upon receipt of a request, an agency is

required to assess whether a record requested is within its possession, custody or control and to

respond within five business days. 65 P.S. 67.901. An agency bears the burden of proving the

applicability of any cited exemption(s). See 65 P.S. 67.708(b).

Section 708 of the RTKL places the burden of proof on the public body to demonstrate

that a record is exempt. In pertinent part, Section 708(a) states: (1) The burden of proving that a

record of a Commonwealth agency or local agency is exempt from public access shall be on the

Commonwealth agency or local agency receiving a request by a preponderance of the

evidence. 65 P.S. 67.708(a). Preponderance of the evidence has been defined as such proof

as leads the fact-finder to find that the existence of a contested fact is more probable than its

nonexistence. Pa. State Troopers Assn v. Scolforo, 18 A.3d 435, 439 (Pa. Commw. Ct. 2011)

(quoting Pa. Dept of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821, 827 (Pa.

Commw. Ct. 2010)).

The Department argues that it provided the requested records in accordance with the

OORs final determination in Brambila I, wherein the OOR found that certain information

contained on the PB-22 forms is confidential under the Departments regulations. See 28 Pa.

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Code 51.3(e)-(f), (i). However, regarding the total number of PB-22 forms filed with the

Department each year, the OOR found that the information, which falls within the definition of

aggregated data under the RTKL, would not reveal any specific facts or information made

confidential under the Departments regulations. Brambila I, OOR Dkt. AP 2017-0042, 2017

PA O.O.R.D. LEXIS 322 at *11-14.

As noted in Brambila I, the Departments regulations impose a duty upon health care

facilities to report allegations of abuse to the Department. 28 Pa. Code 51.3(e)-(f). Section

51.3 provides that:

Information contained in the notification submitted to the Department by a facility

under subsection (e) or (f) may not, unless otherwise ordered by a court for good
cause shown, be produced for inspection or by copying by, nor may the contents
thereof be disclosed to, a person other than the Secretary, the Secretarys
representative or another government agency, without the consent of the facility
which filed the report.

28 Pa. Code 51.3(i). The Requester argues that she modified the Request to exclud[e]

counties with three or fewer nursing homes to prevent from identify[ing] any facility or

patient. However, the exclusion of certain counties does not change the fact that the

information contained in the PB-22 forms is confidential under the Departments regulations.

Therefore, consistent with the OORs finding in Brambila I, the Department has proven that it

properly withheld the information sought in the Request concerning County, Department field

office, nature of abuse, agencies involved, and conclusions as being confidential pursuant to the

Departments regulations. See 65 P.S. 67.305(a)(3); see also Brambila I, OOR Dkt. AP 2017-

0042, 2017 PA O.O.R.D. LEXIS 322 at *11.

CONCLUSION

For the foregoing reasons, the Requesters appeal is denied, and the Department is not

required to take any further action. This Final Determination is binding on all parties. Within

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thirty days of the mailing date of this Final Determination, any party may appeal to the

Commonwealth Court. 65 P.S. 67.1301(a). All parties must be served with notice of the

appeal. The OOR also shall be served notice and have an opportunity to respond according to

court rules as per Section 1303 of the RTKL. However, as the quasi-judicial tribunal

adjudicating this matter, the OOR is not a proper party to any appeal and should not be named as

a party.6 This Final Determination shall be placed on the OOR website at:

http://openrecords.pa.gov..

FINAL DETERMINATION ISSUED AND MAILED: 15 June 2017

/s/ Joshua T. Young

______________________
JOSHUA T. YOUNG, ESQ.
APPEALS OFFICER

Sent to: Nicole Brambila (via e-mail only);

Nicholas Peters, Esq. (via e-mail only);
Lisa Keefer, AORO (via e-mail only)

6
Padgett v. Pa. State Police, 73 A.3d 644, 648 n.5 (Pa. Commw. Ct. 2013).