Travaglia v. Department of Corrections

• Decision Date: 29 July 1997
• Citation: 699 A.2d 1317
• Parties: Michael J. TRAVAGLIA, Petitioner v. DEPARTMENT OF CORRECTIONS, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 1317

699 A.2d 1317

Michael J. TRAVAGLIA, Petitioner v. DEPARTMENT OF CORRECTIONS, Respondent.

Commonwealth Court of Pennsylvania.

Argued March 10, 1997.

Decided July 29, 1997.

Mark J. Lesko, Pittsburgh, for petitioner.

Sarah B. Vandenbraak, Chief Counsel, Camp Hill, for respondent.

Before SMITH and PELLEGRINI, JJ., and JIULIANTE, Senior Judge.

SMITH, Judge.

Michael J. Travaglia petitions for review of the Department of Corrections' (DOC) denial of requests for access to documents pertaining to the Commonwealth's lethal injection method of execution in general and to the application of these procedures to Keith Zettlemoyer and Leon Moser in particular. Travaglia questions whether DOC's denial of permission to examine, inspect and copy such documents violated his rights under Sections 2 and 3 of the Act commonly known as the Right-to-Know Act, Act of June 21, 1957, P.L. 390, as amended, 65 P.S. §§ 66.2 and 66.3.

The legislature adopted lethal injection as the means of administering the death penalty in Pennsylvania by the Act of November 29, 1990, P.L. 572, 61 P.S. § 2121.1. That Act specifies the injection of a lethal quantity of an ulstrashort-acting barbiturate in combination with a paralytic agent. In May 1995, Zettlemoyer became the first person executed by lethal injection; in August 1995, Moser became the second person executed by this means. Travaglia is incarcerated under a sentence of death. In July and August 1995, Mark J. Lesko, attorney for Travaglia in a proceeding in federal court, made written requests to DOC under the Right-to-Know Act to inspect and copy records relating to the lethal injection death penalty. ¹

In a letter dated August 1, 1996, the Chief Counsel of DOC denied possession of photographs or of documents relating to the process for determining dosages, reports of the testing of substances used, postmortem medical evaluations of Zettlemoyer and Moser and the methods considered and the process used by DOC in adopting lethal injection. The letter further denied access to all of the other specified documents, asserting that they did not constitute public documents or that, if they did, they were documents that would impair the personal security or reputation of individuals or that were otherwise privileged. In addition, the letter asserted that the request was an attempt to secure information that would not otherwise be subject to discovery in the ongoing litigation between Attorney Lesko's client and the Commissioner of DOC. ²

I

The Court must first address DOC's contention that Travaglia lacks standing to bring this appeal. DOC refers to Pa. R.A.P. 501, which provides that an appellant must be both aggrieved and a party to the action below. DOC asserts that it never denied any request from Travaglia; therefore he is not aggrieved and was not a party below, and the appeal should be quashed. In Statewide Bldg. Maintenance, Inc. v. Pennsylvania Convention Center Authority, 160 Pa.Cmwlth. 544, 635 A.2d 691 (1993), the Court refused to permit counsel simply to substitute on appeal as the requesting party, where a petition in equity alleged that the corporation bringing the action was a citizen of another state. DOC argues that the same rule against substitution applies here.

In a reply brief, Travaglia asserts that the context of several telephone calls at the time of the requests established that they were made by Attorney Lesko's law firm on behalf of Travaglia as their client. The Court, however, may not consider such factual averments outside of the record before it. Travaglia also argues that DOC's reference in its letter of response to alleged efforts by Attorney Lesko to obtain information not otherwise subject to discovery in Travaglia's action against the Commissioner indicates that DOC was aware that the requests for information were made on Travaglia's behalf. With this the Court agrees. DOC's reference in its response to possible discovery requests in another case would be a complete non sequitur unless DOC recognized that the request was being made on behalf of Travaglia. The Court rejects DOC's request to quash this appeal for lack of standing.

II

Travaglia first emphasizes that the purpose of all statutory interpretation is to ascertain and give effect to the intent of the legislature. Pennsylvania Financial Responsibility Assigned Claims Plan v. English, 541 Pa. 424, 664 A.2d 84 (1995). He notes that this Court has held that the intent of the Right-to-Know Act is to assure availability of governmental information by permitting access; a broad construction is given to the initial determination of whether a document is a public record under Section 1(2), which is to be tempered as an opposing party brings into play the enumerated exceptions. Tribune-Review Publishing Co. v. Allegheny County Housing Authority, 662 A.2d 677 (Pa.Cmwlth.1995), appeal denied, 546 Pa. 688, 686 A.2d 1315 (1996).

Section 1(2) of the Right-to-Know Act, 65 P.S. § 66.1(2), defines "Public Record" in part as follows:

[A]ny minute, order or decision by an agency fixing the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons: Provided, That the term 'public records' ... shall not include any record, document, material, exhibit, pleading, report, memorandum or other paper, access to or the publication of which is prohibited, restricted or forbidden by statute law or order or decree of court, or which would operate to the prejudice or impairment of a person's reputation or personal security....

The definition of "minute, order or decision" in Section 1(2) has been broadly construed to require only some form of action by an agency that has an effect on someone. Owens v. Horn, 684 A.2d 208 (Pa.Cmwlth.1996) (DOC Code of Ethics, which embodies decisions of DOC that fix duties and obligations of its personnel, is a public record).

Travaglia contends that the requested materials affect the rights, duties and obligations of DOC personnel charged with the duty of carrying out executions, of witnesses required to be present and of condemned persons. He states a concern that DOC's adoption of unspecified and unexplained lethal injection procedures could result in cruel and unusual punishment. The Court agrees with Travaglia's implicit position that underlying any death penalty statute is the requirement of Article I, Section 13 of the Pennsylvania Constitution that "cruel punishments [shall not be] inflicted." Although DOC speaks only of rights and duties of its personnel and of witnesses, the last right that a condemned person retains is that of being executed in a manner that is not unconstitutional, which currently is embodied in 61 P.S. § 2121.1.

DOC has acknowledged that it has a manual, which it regards as confidential, that describes in detail the actual procedures for lethal injection and also the attendant security measures. Details of the procedures by which DOC implements lethal injection necessarily affect the statutory and constitutional rights of the condemned. In Lamolinara v. Barger, 30 Pa.Cmwlth. 307, 373 A.2d 788, 790 (1977), the Court held that the term "fixing" rights, duties and so forth was intended to mean "affect[ing] them." Because most of the information Travaglia requests concerning implementation of executions affects constitutional and statutory rights, the Right-to-Know Act defines it to be a "public record" that any citizen has a right to inspect, unless some statutory exception applies. ³

DOC asserts that documents relating to the technique and manner of the lethal injection procedures are not within the general definition of public records because they set guidelines and goals, not obligations for its personnel. By their nature they must afford flexibility to accommodate the characteristics of individual inmates and also any last-minute decisions by courts, the Governor or the inmates' attorneys. DOC contends that the documents requested fix no obligations or duties of personnel and do not carry any penalties for deviation from the documents' suggestions. The Court, however, rejects the notion that an agency may avoid disclosure of materials relating to performance of its mandatory duties by characterizing them as "suggestions" or "goals" that do not "fix" any rights or duties of its personnel.

The second overall category of information that Travaglia seeks concerns witnesses to lethal injection executions, both the method of selecting them and the identity and any recorded impressions of those in the past. DOC asserts that no person has a right to be a witness; hence the method of selection affects no right. Further, recorded observations of past witnesses cannot affect any present or future rights. The Court does not agree. At a minimum, in terms of the rights of condemned persons and of society as a whole, the presence of witnesses and any recorded observations they provide serve as a check that the procedure was performed properly.

Section 9711(l ) of the Sentencing Code, 42 Pa.C.S. § 9711(l ), provides that no person shall witness an execution except for (1) the superintendent of the institution involved, (2) a qualified physician, (3) six reputable adult citizens selected by the superintendent, (4) a spiritual advisor if requested, (5) up to six accredited representatives of the news media and (6) such prison staff as the superintendent selects. Putting a person to death is as solemn an act as the State is capable of performing. Where the State has made provision for witnesses to an execution, their presence must be presumed to serve a most serious purpose. Accordingly, the Court concludes that the information requested as to witnesses and the manner of their selection is within the general meaning of public records, although DOC may be able to show that an enumerated exception applies.

III

As respondent in this proceeding, DOC for the first time provides its reasons for the application of...