Summer 2006
Another Proposed Federal Shield Law
On May 18, 2006, Senators Richard Lugar, Arlen Specter, Chris Dodd, Lindsey Graham and Charles Schumer introduced yet another proposed federal shield law entitled the "Free Flow of Information Act of 2006," Senate Bill 2831.
In essence, the bill protects a journalist from being compelled to identify a confidential source or to divulge his or her records, communications, data or other documents in a criminal or civil action unless the prosecuting attorney or civil litigant proves, after the journalist has notice and opportunity to be heard, by clear and convincing evidence that (1) they have exhausted alternative sources of information, (2) the subpoena avoids the production of large volumes of unpublished material and is limited to verifying public information or necessary facts surrounding the accuracy of published information, (3) there has been timely notice in a demand for documents, (4) nondisclosure would be contrary to public interest after balancing the public interest against the newsgathering privilege, (5) there are reasonable independent grounds to believe that a crime has occurred and the information is critical to the prosecution of that crime or to the guilt or innocence of the defendant, and (6) the subpoena is not being used to obtain peripheral, nonessential, or speculative information.
The Act does not protect the testimony of a journalist when he or she is an eyewitness to a criminal act or to tortious conduct including any "physical evidence or visual or audio recording of the observed conduct," if the person requesting the testimony shows by clear and convincing evidence that they have exhausted alternative methods to obtain the information. There is also an exception written in to prevent death or serious bodily injury. There is a remaining exception built in for "national security interests."
Finally, there is a catchall provision, which states that the Act does not change existing law regarding the disclosure or nondisclosure of non-confidential sources. It will be interesting to see the fate of this legislation in light of the several other versions in the House and Senate still pending.
Commonwealth Court Rules that Right to Know Outweighs Privacy Issue in Parsons v. Urban Redevelopment Authority of Pittsburgh
The Commonwealth Court of Pennsylvania recently ruled that under Pennsylvania's Right to Know Act the public can have access to records and repayment histories of businesses that have borrowed public funds.
According to the court the public has a very strong interest in knowing who is receiving public funds and in what manner those loans are being repaid. Public disclosure and oversight provides protection against malfeasance, misfeasance and the waste of public funds. The court emphasizes, however, that there are some matters that are not subject to disclosure.
In Parsons v. the Urban Redevelopment Authority of Pittsburgh, the court ruled that James Parsons, a reporter for WTAE-TV, may have access to records including the repayment histories of businesses that have borrowed public funds through redevelopment authority-administered programs, but may not have access to confidential information relating to individuals such as home addresses, telephone numbers, Social Security numbers, bank account numbers or medical reports. This would be an invasion of privacy interests that would outweigh any public benefit, as was originally ruled in the case Times Publishing Co., Inc. v. Michel (Pa. Commonwealth 1993).
In August of 2004, Parsons submitted a written request to the redevelopment authority for access to documents concerning the Pittsburgh Business Growth Fund and the Streetface program for 2002, 2003 and 2004 including details on names and locations of all businesses or entities that received loans from those funds; all loan applications for those funds; all loan applications for those businesses that received loans; the amount of money loaned to each and the conditions of each loan and the terms of repayment; and the payment history of each loan recipient.
The redevelopment authority granted access to many of the documents with the exception of payment history for loan recipients, stating that those documents are not public records because the borrowers' right to privacy would be infringed, and disclosure could damage their reputations.
The trial court ordered it to make the payment history of each recipient of a loan since 2002 available. Under the Right to Know Law "every public record of an agency shall, at all reasonable times, be available for examination and inspection by any citizen of the Commonwealth of Pennsylvania." After an appeal, the Commonwealth upheld this decision.
Additionally, Parsons claimed that under the Right to Know Law, if a court reverses an agency's final determination, the court may award reasonable attorney's fees and costs of litigation, or an appropriate portion of those fees, to a requester if the court finds that the agency willfully deprived the requester of access to a public record subject or the exemptions, exclusions or defenses asserted by the agency in its final determination were not based upon a reasonable interpretation of law.
The court determined that the Pittsburgh Redevelopment Authority did not willfully withhold public records, nor was their decision based on an unreasonable interpretation of the law. Therefore, Parsons' request was denied.
Judges Split on Whether or Not Description of Legal Services Rendered in Litigation Should be Disclosed
In the case Schenck v. Township of Center, the Commonwealth Court of Pennsylvania ruled in a 2-1 decision that the description of litigation-related services in a solicitor's invoice is not accessible under either the Right to Know Law or the Sunshine Act in the absence of consent from the client municipality.
The majority, Judge Renee Cohn Jubelirer and Judge Robert Simpson, concluded that "all information from the solicitor relating to pending or impending litigation is inaccessible" to the public under the Right to Know Law.
According to the dissenting opinion from Judge Rochelle S. Friedman, this appeal "raised the narrow issue of whether the description of services rendered by a township solicitor, which appear in the solicitor's invoices, constitutes attorney work product as a matter of law."
The majority believes that the Right to Know Law and the Sunshine Act in this case are indistinguishable and permit an agency to hold executive session for the purpose of consulting with its attorney regarding information in connection with litigation. Since this exemption is not limited to attorney work product, all information from the solicitor related to pending or impending litigation is inaccessible to the public under both statutes.
Judge Friedman argues that the Right to Know Law and the Sunshine Act are distinguishable in this case because the Right to Know Law is intended to ensure the public availability of government information permitting access to official information, while the Sunshine Act is intended to open the decision-making processes of state government to greater public scrutiny and accountability.
Judge Friedman also said that the majority did not conclude that the information that was redacted in the case was protected by the attorney-client privilege and that the majority never indicated that the information consisted of confidential communications between attorney and client.
Court Denies Access to Representative's Personal Cell Phone Bill
The Commonwealth Court of Pennsylvania recently ruled that the private cellular telephone bill of a member of the General Assembly is not subject to public access unless there is evidence that the actions are not colored with the authority of the state.
In the case Uniontown Newspapers, Inc. v. Roberts, Paul Sunyak of the Herald-Standard (a Uniontown Newspapers publication) asked for access to the personal cellular phone bills for Lawrence Roberts (D-51) a member of the Pennsylvania House of Representatives. Roberts had received partial reimbursement for the bill from public funds.
Roberts refused this request. Following the refusal, Sunyak published articles criticizing Roberts. Roberts responded by allowing limited access to his phone bills to a select group of media, which included the Herald-Standard, with the exception of Sunyak. Roberts did not allow any one from the Herald-Standard to keep copies of the bills, be left alone with the bills, take notes, release the identities of those parties whose numbers were listed on the bill, or contact those same parties. The Herald-Standard found those conditions unacceptable and a refusal of access.
Uniontown Newspapers then filed a three-count complaint alleging that their constitutional rights had been violated by Roberts when he denied them access to itemized personal cellular phone bills. The Supreme Court found that two counts of the complaint brought under Section 1983 should not be dismissed on preliminary objections because factual issues remained concerning whether Roberts was acting under the color of law.
Uniontown Newspapers claim that Roberts violated their Constitutional right to equal protection by denying them access to the phone records while allowing other members of the media to have access. Roberts argues that he acted as a private citizen protecting his personal cell phone bill, even though he was partially reimbursed with public funds.
The second issue is whether Roberts was retaliating due to Uniontown Newspapers' exercise of their constitutional rights. Uniontown claims that Roberts acted under color of state law by retaliating against them for exercise of their First Amendment right to free speech by denying them access to his phone records while allowing others to have access. Roberts argues that he was exercising his own free speech and acted as a private citizen in response to Sunyak's critical columns by granting limited access.
The court determined that both counts alleged by Uniontown Newspapers fail for the same reason. The lone fact that Uniontown Newspapers allege to support their claims is Robert's office as a member of the General Assembly. The simple fact that Roberts is a public official is insufficient to establish that all acts of Roberts are colored with the authority of the state.
This is particularly true because Uniontown Newspapers have not alleged any facts that implicate any action at all by the state itself. The Commonwealth does not, and never did, have copies of the bills in question. Roberts' actions cannot be attributed to the Commonwealth and it was not state action. Because Roberts acted only as a private citizen, the fact that Roberts treated Sunyak and the Herald-Standard differently from others, or that he acted in a retaliatory fashion is denying access, it is insufficient to state a Section 1983 claim.
Congress Considers the Introduction of Cameras into Federal Courts
Currently before Congress are three separate bills that would permit televised court proceedings within the federal judiciary under certain requirements. They are H.R. 1751, and in the Senate, S. 829 and S. 1768. H.R. 1751 would permit both civil and appellate federal proceedings to be broadcast at the discretion of the presiding judge. S. 829 contains similar language and S. 1768 would apply only to the Supreme Court of the United States, and applies only to its public argument sessions unless the justices, by majority vote, would decide that broadcasting would violate the due process rights of one or more of the parties.
Interestingly, the White House has stated its opposition to any legislation, which would permit cameras in federal court proceedings at any level. Some federal court proceedings, so far limited mostly to "argument sessions" have been broadcast on a trial basis.
The arguments against cameras in the federal courthouse are similar to those heard regarding state proceedings, that being that the cameras will either unduly influence the litigants and potentially the court and/or would somehow violate due process rights of the parties. The fate of any of these bills is still very much in question.
Lobbying Reform Committee Helps State House of Representatives Draft Legislation
Nauman Smith Senior Partner Spencer G. Nauman, Jr., serves as co-chair of a committee formed by Speaker of the House John M. Perzel to study recommended rules of conduct specific to attorneys who lobby the legislature and are subject to oversight of the Supreme Court. The Rules of Conduct for Lawyers Who Lobby Legislative Advisory Committee was organized to obtain guidance in drafting legally binding lobbying reform legislation, which was recently introduced in the house.
The committee was formed in February to review First Amendment issues that negated the state's previous Lobbying Disclosure Law, which was declared unconstitutional. According to the court, the previous law "unfairly discriminated against lawyers who take part in the lobbying process."
In 2002, the Pennsylvania Supreme Court declared the Lobbyist Disclosure Act of 1998 (Act 93) unconstitutional because it required registration and disclosure by lobbyists who are also lawyers. This provision violated a provision that only the Supreme Court can regulate the practice of law.
The new measure, known as the Lobbying Accountability Act, strengthens the state's crimes code with regards to lobbying; establishes registration and reporting procedures for lobbyists and organizations; and creates a committee to oversee any future regulation changes. The advisory committee evaluated all of these measures to verify that there are no violations of First Amendment rights.
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