Summer 2007
Counties Challenged On Excessive Fees Charged for Real Estate Tax Assessment Files
Counties across Pennsylvania are learning, some the hard way, that tax assessment files are public records. Craig Staudenmaier has been educating county solicitors and tax assessment offices of the status of the law� consistent for more than three decades� that such records are subject to mandatory disclosure, Westmoreland County Bd. of Assessment Appeals, 321 A.2d 660 (1974), and access cannot be impeded by charging thousand dollar fees for electronic copies on CD-ROM of that information. The fee must be related to the cost of reproduction incurred. Under the Right to Know Law, (RTKL), unreasonable impediments to public access can be challenged. Accordingly, RTKL agencies should assess the fees charged and evaluate their policies to be prepared.
Three Pending Bills Poised to Amend RIGHT TO KNOW LAW ("RTKL")
Currently circulating through the halls of the Capitol are three separate bills which, although similar in many respects, would make distinct changes to the RTKL. In addition to a bill proposed by Governor Rendell, there are two other bills proposed with growing support: SB1 and HB443, sponsored by Majority Leader Sen. Pileggi and Rep. Mahoney (D) from Fayette County respectively.
The Governor's bill attempts to correct a fundamental flaw of the existing law by creating a presumption of openness; however, the originally proposed bill contains thirty-five exemptions. The bill would include entities like the Pennsylvania State University and other state-related institutions as well as the Legislature and Judiciary under "Right to Know," which are currently not covered. Keeping with its presumption of openness, the burden of proving that a public record would be exempt from disclosure would rest with the agency. The procedure for making a request in handling production, redaction and denial closely mirrors that of the current law. A significant provision of his bill creates the "Office of Public Records" which would provide an informal mediation program to resolve disputes, hear and adjudicate appeals and provide guidelines, educational materials, training and a website to access prior decisions, funded by a filing fee for appeals.
HB443 would also include the judicial and legislative branches within its purview, along with state-related universities. Its procedure too tracks closely the existing law and contains the presumption of openness along with the burden of proof on the agency to show exemption with approximately 24 hours. One of the notable exemptions would be e-mail which does not discuss the spending of public money or the "duties or powers of the office, office holder or agency". It too would provide for an Office of Access to public records which, unlike the Governor's bill, would be established as an independent administrative agency.
Like the other bills, SB1 would cover legislative and judicial agencies and state-related entities. It would also require that each covered agency have an open records office and an open records officer. Once again, the timing and provisions for requesting, redaction, denial and exceptions and appeal are similar to existing law.
All three provide penalties for violations of the RTKL ranging from $500.00-$1,000.00 and the award of legal fees for the prevailing party. But all three bills lack significant provisions. For example, a clear statement of the openness presumption in SB1, and all three contain provisions stating that the 'creation' of a record is not required, even in situations where the record would exist in an electronic format in the agency's records, and could be easily transmitted into a portable format for the requestor without much time or expense. The format in which records exist versus the format in which they are produced must be addressed and the law updated to reflect the electronic age. It will also be interesting to see how the creation of another agency, will be handled administratively and budget-wise.
SPOTLIGHT: Pennsylvania Supreme Court
In Weaver v. Lancaster Newspapers, Inc., (June 28, 2007), the Court reversed the grant of summary judgment in a reporter's favor. The case arose out of the infamous Lisa Michelle Lambert/Laurie Show murder case. A police officer brought claim of defamation when he had been accused in a Letter to the Editor published by the newspaper of a sexual crime. The author of the letter filed a Motion for Summary Judgment in the trial court based on the lack of "actual malice," needed here since the officer involved was deemed a public figure.
Significantly, the court held that the republication of the article or the allegation complained of after the filing of the defamation complaint could still be considered an act of "republication" and used as evidence by Plaintiff on the issue of actual malice. Additionally, the Court held that the affidavit of the reporter regarding his frame of mind, relevant to the issue of actual malice, could not support a Motion for Summary Judgment but created a credibility issue for the finder of fact to decide and thus reversed the granting of summary judgment by the court below. This is a problematic and potentially significant change to the basis for summary judgment not only in defamation cases, but also in all litigation in the Commonwealth. The Court referenced the archaic Nanty-Glo �rule' which all but disappeared in cases involving summary judgment, particularly with regard to defamation, after Ertel v. Patriot News (Nauman Smith counsel) was decided in the paper's favor. The impact of this decision remains to be seen.
On June 20th, the Supreme Court held that an audio tape played in preliminary hearing is public judicial record that must be disclosed in Commonwealth v. Upshur. A radio station had filed a motion to intervene to secure a copy of the tape played at the hearing containing threats made to eventual homicide victims. The tape was not formally entered into evidence in the proceeding and was not released as a judicial record. However, since the tape was made a permanent part of the record in the case and comprised part of the decision-making process of a public judicial body, the Court held it was publicly accessible as a judicial record. Interestingly, in the course of arguments from the District Attorney and Defendant that the playing of the tape could prejudice the ability to obtain a fair trial, the Court indicated that such a potential could be dealt with during voir dire and/or a change of venue.
In Commonwealth v. Long, the Court held there is a qualified constitutional right of access to the names, but not home addresses, of jurors in a criminal trial. Near the end of the 2003 trial of Karl Long for the murder of his wife, a local newspaper and a local TV station petitioned the trial court for access to the jury panel's names and addresses. Though the trial and Superior courts ruled that there was no right to access, in a 5-0 decision, authored by Chief Justice Cappy, the Supreme Court reversed.
The Court explained that there is no common law right in Pennsylvania to access jurors' names and addresses, and that lists of juror names and addresses are distinguishable from judicial records because they are not entered as evidence, are not required to be kept by rules of criminal procedure, are not part of the certified record on appeal, and are not used by the judge to reach a decision.
The Court concluded that the source of the right to access is a qualified constitutional right grounded in the First Amendment of the United States Constitution. The Court noted that as the American judicial system evolved, a tradition of accessibility to jurors' names developed. Next, it held that such openness is logical to allow the public to identify jurors and place a check on partiality. The right is �qualified' because privacy concerns are balanced against the interests of the public.
Continuing to uphold the sanctity of a person's home address, the Court did not recognize a right to access jurors' addresses because unlike names the disclosure does not advance the interest in impartiality.
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