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FINAL DETERMINATION IN THE MATTER OF : : PROPUBLICA, INC., : Complainant : : Docket No.: AP 2011-0905 v. : : PENNSYLVANIA DEPARTMENT OF : PUBLIC WELFARE, : Respondent : INTRODUCTION
Charles Ornstein, on behalf of ProPublica, Inc., (the “Requester”) submitted a request to the Pennsylvania Department of Public Welfare (“DPW”) pursuant to the Right-to-Know Law, 65 P.S. §§ 67.101
et seq
., (“RTKL”), seeking Medicaid/Medical Assistance (“MA”) reimbursed  prescription information by doctors. DPW asserted several statutory and regulatory exemptions and the social services exception. The Requester appealed to the Office of Open Records (“OOR”). For the reasons set forth in this Final Determination, the appeal is
 granted in part
 and
denied in part
 and DPW is required to take further action as directed.
FACTUAL BACKGROUND
On May 19, 2011, the Requester submitted a right-to-know request seeking: An electronic spreadsheet containing data on prescribing practices within the state Medicaid program in 2009 and 2010. Specifically [] information on the drugs  prescribed by individual doctors that were reimbursed by Medicaid, separated by year [with] the following fields for each drug and doctor:  NDC Code; Brand Name;
 
 2  Number of Prescriptions; Unit Count; Amount Paid; Provider Name; Provider Unique ID; Provider Address (including City/Zip); Title/type of Provider (MD, DDS, OD, etc.) (“Request”). The Requester advised it is willing to accept the information in (1) aggregate form (by doctor, by drug) or (2) in raw claims format, with all patient identifiers removed, and noted that the information sought includes information related to managed care enrollees. Further, the Requester sought a waiver of fees as a nonprofit news organization based in New York. After timely invoking an extension, Open Records Officer (“ORO”) Andrea Bankes, responded, characterizing the Request as seeking three types of formats as follows: (1)
 
An electronic spreadsheet – “Tabulation No. 1;” (2)
 
In aggregate form – “Tabulation No. 2;” (3)
 
In raw claims format – “Set of All MA Drug Claims for 2009 and 2010.” As to Tabulation Nos. 1 and 2, DPW advised that the records do not exist in that format and has no obligation to create a record pursuant to Section 705. As to Tabulation No. 2, DPW also argued that the records sought do not meet the definition of “aggregate data” as defined in the RTKL because it identifies physicians by title and provider type. As to the Set of all MA Drug Claims 2009 and 2010, DPW denied the Request in its entirety, representing that the MA Program only pays for drugs that are prescribed for MA recipients such that every claim submitted for payment identifies MA recipients. DPW explains the records at issue identify the recipients, the practitioner that prescribes the drugs, the drugs and the pharmacy that fills the  prescription and submits the claim for payment referred to a “MA Drug Claim.” DPW cites
 
 3 Section 708(b)(1)(i) (loss of federal funds), Section 708(b)(5) for medical records and Section 708(b)(28) for social services records. Due to the identification of the MA recipients, DPW advised each record is “recipient specific” and also protected by the following state and federal laws:
 
62 P.S. § 404(a)(1) stating “no information shall be furnished regarding any  person’s application for, or receipt of, medical assistance.”
 
55 Pa. Code § 105.1(e)
 
55 Pa. Code § 105.3(b)
 
42 U.S.C. § 1396a(a)(7)
 
42 U.S.C. § 1320b-7
 
42 C.F.R. §§ 431.300-.307
 
45 C.F.R. Parts 160, 162 and 164 (Health Insurance Portability and Accountability Act, “HIPAA” regulations) (“Denial”). Since it denied the Request, DPW did not address the request for a fee waiver. The Requester timely appealed, arguing the records constitute aggregated data that does not identify MA recipients and is thus not protected. The Requester argues that the data sought does not include any MA recipient identified information and that the information can be  provided in redacted form. The Requester also asserts that the information he seeks is provided  by other states, and had been provided by “the State of Pennsylvania” as indicated in the United States Supreme Court case
Sorrell v. IMS Health
, 131 S. Ct. 2653 (U.S. 2011). DPW supplemented the record with a submission from Senior Assistant Counsel Leonard Crumb and an affidavit of Barry Buckingham, Senior Medical Economist for the Office of MA Programs for DPW (“Affidavit”). DPW argues the records are not public because they are  protected by state and federal laws, and there is no obligation to redact them because they do not fall within the definition of “public record.” DPW asserts the records are not maintained in either an electronic spreadsheet or aggregated by doctor or drug, and thus do not exist in the format sought. DPW explains that the records it transmits to Centers for Medicare and Medicaid

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