Capital Cities Media, Inc. v. Chester
| Decision Date | 21 July 1986 |
| Docket Number | No. 85-5132,85-5132 |
| Citation | 797 F.2d 1164 |
| Parties | CAPITAL CITIES MEDIA, INC., t/d/b/a the Wilkes-Barre Times Leader and Scheier, Robert, Assistant City Editor, Appellants v. CHESTER, James W., Regional Director, Northeast Region, Pennsylvania Department of Environmental Resources, and Carmon, Mark R., Community Relations Coordinator, Northeast Region, Pennsylvania Department of Environmental Resources, and Debenedictis, Nicholas, Secretary, Pennsylvania Department of Environmental Resources, and Pennsylvania Department of Environmental Resources. |
| Court | U.S. Court of Appeals — Third Circuit |
Ralph E. Kates, III (argued), Griffith, Aponick & Musto, Wilkes-Barre, Pa., for appellants.
LeRoy S. Zimmerman, Atty. Gen., Gregory R. Neuhauser, Senior Deputy Atty. Gen. (argued), Andrew S. Gordon, Senior Deputy Atty. Gen., Allen C. Warshaw, Chief Deputy Atty. Gen., Chief, Litigation Section, Office of Attorney General, Litigation Section, Harrisburg, Pa., for appellees.
Before GIBBONS, SLOVITER and STAPLETON, Circuit Judges.
Before ALDISERT, Chief Judge, and SEITZ, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM, SLOVITER, BECKER, STAPLETON and MANSMANN, Circuit Judges.
Capital Cities Media, Inc. and Robert Scheier, the publisher and Assistant City Editor of a Wilkes-Barre newspaper, the Times Leader, appeal from an order of the district court denying their motion for a preliminary injunction and dismissing their complaint, 609 F.Supp. 494. Defendants are the Pennsylvania Department of Environmental Resources and various of its officials. Appellants ("Times Leader") contend that appellees ("D.E.R." or "Department") denied them access to records in the sole possession of D.E.R., in violation of Times Leader's First Amendment and state law "right to know". Times Leader further contends that the Department's practices with respect to the production and withholding of its records deprives Times Leader of equal protection of the law.
The district court dismissed the complaint for failure to state a claim under the First Amendment and Equal Protection Clause, and held that, under Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), the Eleventh Amendment barred the court from considering the state law basis for Times Leader's claim of access to the records.
We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. Our review is plenary. We assume, as we must, that Times Leader will be able to prove the facts which it alleges in its amended complaint. Moreover, because the district court treated an affidavit filed by Times Leader as a supplement to its complaint, we do likewise and assume the truth of the allegations contained therein for purposes of this appeal.
In December 1983, a major northeast Pennsylvania supplier of drinking water, Pennsylvania Gas & Water Company, placed 250,000 customers on water use restrictions after an outbreak of giardiasis, an intestinal illness caused by the contamination of drinking water by giardia cysts. Over four hundred consumers contracted the illness. D.E.R. is responsible for enforcing various environmental laws and regulations designed to protect the integrity of the public water supplies.
Times Leader investigated the causes of the giardiasis outbreak, including D.E.R.'s possible culpability, and published some four hundred articles and opinion pieces dealing with this incident, approximately one fifth of which have focused on the D.E.R. and the individual defendants in this case. Some of these articles and opinion pieces raised questions of whether political influence or other improper considerations led D.E.R. selectively to enforce its environmental mandate. The articles also examined the enforcement strategy of D.E.R. and its predecessor agencies with regard to sewage discharge problems of Roaring Brook Township and Spring Brook Township the two townships identified by D.E.R. as the most likely sources of the giardia cyst contamination.
Pursuant to its investigation, Times Leader submitted a written request to D.E.R. for access to documents, including:
Records identifying the 80 to 85 known sewage violators in Spring Brook Twp.
Records, including dates of surveys made to identify the sewage violators.
Correspondence between DER and Spring Brook Twp. officials during the past 10 years.
Roaring Brook Estates--permits issued and correspondence concerning the sewage problems there.
Elmbrook Development--permits issued and correspondence concerning the sewage problems there.
Correspondence between DER and Roaring Brook Twp. officials during the past 10 years.
On April 18, 1984, and for several days thereafter, Times Leader inspected a substantial amount of materials provided by D.E.R. at the Department's Wilkes-Barre office. During that inspection, D.E.R. officials informed Times Leader that certain documents had been withheld from the inspection, apparently because
Department policy statewide allows for review of all files at Regional Offices and in Harrisburg with the following exceptions:
1. Interoffice memorandum.
2. Documents relating to attorney/client relationships.
3. Citizen complaints.
A33.
According to Times Leader, the materials it inspected included a substantial number of documents which fell into these excepted categories. Moreover, D.E.R. has been unable to provide Times Leader with a copy of this policy. Indeed, an Assistant Counsel for D.E.R. informed Times Leader that there was in fact no formal statewide policy on public access to information, and that each regional D.E.R. office generally could set its own standard.
At the request of Times Leader, D.E.R. verbally provided a more complete description of the withheld documents. The documents included citizen complaints (six to twelve documents), attorney-client communications (three to four documents), memoranda generated by technical personnel that discuss enforcement strategy and options (approximately six documents); and memoranda generated by technical personnel discussing the results of D.E.R.'s investigation of the giardiasis or sewer problems (undisclosed number of documents). The bulk of the documents fall into the last category.
The Department also provided Times Leader with a copy of its "Public Information General Policy and Guidelines." That document states that "All citizens shall be provided access to Departmental records and documents," with the following exceptions:
1. Any report, communication or other paper, the publication of which would disclose the institution, progress or result of an investigation undertaken by an agency in the performance of its duties;
2. Any item which is prohibited, restricted or forbidden by statute or order of court, or which would operate to the prejudice or impairment of the person's reputation or personal security;
3. Any item which would result in the loss by the Commonwealth or any political subdivision thereof, of federal funds.
The issue posed by Times Leader is whether the First and Fourteenth Amendments to the United States Constitution require officials of a state agency either to furnish information relating to an agency investigation to members of the public who request such information or to justify their refusal to do so by demonstrating a compelling state interest which cannot be vindicated in a less restrictive manner. Times Leader urges that the First and Fourteenth Amendments impose such an obligation on all public officials in order that the people may know about, evaluate and influence the activities of their government.
There is, of course, no doubt about the value to the Republic of an informed electorate. Nor can there be doubt that a core purpose of the free speech and press clause is to promote the circulation of information and ideas necessary to make government by the people a workable reality. At the same time, neither Times Leader nor any other commentator has suggested that it is necessary, desirable, or even possible to provide the citizenry with access to all of the information in the possession of their governments. As a result, the underlying issue which must be faced here is not whether it is desirable to have an informed electorate, but rather, who is to decide which government-held information must be made available to the public and by what criteria such decisions will be made. If a right of access were implicit in the First Amendment, as Times Leader urges, this task would be assigned to the judiciary and the courts would be required to fashion a constitutional freedom of information act.
The First Amendment, however, seeks to promote the ideal of an informed electorate by barring government interference with the flow of information and ideas to the public. The founding fathers intended affirmative rights of access to government-held information, other than those expressly conferred by the Constitution, to depend upon political decisions made by the people and their elected representatives. This conclusion finds support in the text of the First Amendment, the historical gloss on that text, and the First Amendment caselaw.
The First Amendment provides that "Congress ... shall make no law ... abridging the freedom of speech, or of the press." The Fourteenth Amendment extends this preclusion to actions by the states. This means that, with a few, carefully crafted exceptions, the government can neither interfere with anyone who is attempting to speak or publish nor punish him or her thereafter for having done so. 2 It further means that government cannot interfere with one reading or hearing that which someone else wishes to communicate. 3 The free speech clause also precludes government interference with the flow of information at a pre-publication stage. Thus, the...
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