Uniontown Newspapers, Inc. v. Roberts

• Decision Date: 24 December 2003
• Citation: 839 A.2d 185,576 Pa. 231
• Parties: UNIONTOWN NEWSPAPERS, INC., t/d/b/a the Herald-Standard, a Corporation, and Paul Sunyak, an Individual, Appellants, v. Lawrence ROBERTS, in his Capacity as a Member of the General Assembly of Pennsylvania, Appellee.
• Court: Pennsylvania Supreme Court

839 A.2d 185

576 Pa. 231

UNIONTOWN NEWSPAPERS, INC., t/d/b/a the Herald-Standard, a Corporation, and Paul Sunyak, an Individual, Appellants, v. Lawrence ROBERTS, in his Capacity as a Member of the General Assembly of Pennsylvania, Appellee.

Supreme Court of Pennsylvania.

Argued May 15, 2003.

Decided December 24, 2003.

Charles Kelley, Thomas A.P. Hayden, Barbara A. Scheib, for Uniontown Newspapers Inc. and Paul Sunyak.

Jonathan F. Bloom, Jason K. Cohen, C. Clark Hodgson, Philadelphia, for Lawrence Roberts.

Before CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and LAMB, JJ.

OPINION

Justice EAKIN.

On April 10, 2000, Uniontown Newspapers, Inc., and its reporter, Paul Sunyak, submitted a written request to Lawrence Roberts, a member of the Pennsylvania General Assembly, for copies of telephone records for which Representative Roberts sought reimbursement from the House of Representatives. Specifically, appellants requested appellee's cellular records, long distance records from his Harrisburg and Uniontown legislative offices, and long distance records from his residential line.

Appellants allege that on May 15, 2000, appellee informed the editor he would allow the newspaper to examine the records if a different reporter was assigned to review them. The newspaper rejected this condition. The same day, appellee wrote a letter to the publisher urging the paper to prohibit Sunyak from reporting on appellee's activities. On June 8, the newspaper submitted a written request for the records to the Office of the Clerk, the Comptroller, and the Bipartisan Management Committee of the House of Representatives. On June 10, appellee provided copies of the records to a local radio station, and stated he was withholding the records from the newspaper because he believed it was biased. On June 13, appellee told the radio station he allowed reporters from other newspapers to examine the records. On June 16, appellee stated he would consider providing the records if the newspaper's counsel absolved him of wrongdoing in connection with them.

The Parliamentarian of the House of Representatives told appellants he did not have access to the information. Chief Counsel to the House Democratic Caucus wrote to appellants, advising: (1) the Right to Know Act (Act), 65 P.S. §§ 66.1-66.4, was Pennsylvania's only statutory basis to obtain public records; (2) the records requested were not "public records" as defined by the Act; and (3) the House of Representatives was not an "agency" as defined by the Act.

On September 1, 2000, appellants filed a petition for review with the Commonwealth Court, requesting an order declaring their constitutional and common law right of access to these records (Count I). Appellants also alleged appellee violated their equal protection rights, under 42 U.S.C. § 1983, by selectively denying access to the records (Count II), and retaliated against them for exercising their First Amendment right of free speech (Count III). Appellee filed preliminary objections in the nature of a demurrer, which the Commonwealth Court sustained. Uniontown Newspapers, Inc. v. Roberts, 777 A.2d 1225 (Pa.Cmwlth.2001). Appellants have appealed, and raise the following issues:

(1) Whether there is a common law right of access by the citizens of Pennsylvania to public records held by, or otherwise maintained for, the legislative branch of government in Pennsylvania, including but not limited to state legislators in their individual, official capacities.

(2) Whether there is a right of access by the citizens of Pennsylvania to public records held by state legislators or maintained on behalf of the legislative branch of government, under the First Amendment to the United States Constitution or the Pennsylvania Constitution, Article I, § 7.

(3) Whether a "legitimate legislative activity" under the Speech or Debate Clause of the United States Constitution extends to the act of a state legislator distributing his telephone expense records.

(4) Whether it is clear from doubt from all of the facts pled in the petition for review, and from all reasonable inferences drawn therefrom, that Uniontown Newspapers will be unable to prove facts legally sufficient to establish a right to relief under 42 U.S.C. § 1983 for an equal protection violation (Count II).

The Commonwealth Court acknowledged a common law right to examine certain judicial records. See Commonwealth v. Fenstermaker, 515 Pa. 501, 530 A.2d 414 (1987) (common law right of access to affidavits in support of search warrants); Wiley v. Woods, 393 Pa. 341, 141 A.2d 844 (1958) (citizens with personal or property interest in public records may invoke right under Right to Know Act); Appeal of Simon, 353 Pa. 514, 46 A.2d 243 (1946) (statute made military ballots and related materials public records subject to citizen inspection). The Court also analyzed Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978) (concerning tape recordings of White House conversations), and concluded the cited cases implicated either a common law right to judicial records or a statutory grant of access; there was no common law right to legislative records.

Appellants contend the Commonwealth Court erred when it "ignored each and every indicia of access as erected and applied by this Court in Fenstermaker." In Fenstermaker, this Court considered whether a common law right of access to public judicial records existed, and developed a three-part test: (1) whether the material sought to be disclosed is public; (2) whether a common law right of access may be asserted; and (3) whether access to the material is outweighed by the circumstances warranting closure. The Court, relying upon Nixon v. Warner Communications, Inc., supra, stated:

Accordingly, we are persuaded that the instant case presents a situation where the common law right of access may appropriately be asserted, and that the interests of the public in observing the functioning of the criminal justice system are sufficient as a basis upon which to assert such a right. As stated, however, in Nixon v. Warner Communications, Inc., supra, the right to inspect judicial documents is not absolute, and courts do have supervisory power over their records and files. Where the presumption of openness attached to a public judicial document is outweighed by circumstances warranting closure of the document to public inspection, access to the document may be denied.

Fenstermaker, at 420. Thus, a common law right to access public judicial records was recognized in Pennsylvania, but significantly, the scope of Fenstermaker and its progeny has never been enlarged to include the legislative branch.

Considering statutory claims, this Court has held, unequivocally, "the General Assembly codified and clarified the common law right of public access to public records" when it enacted the Right to Know Act. North Hills News Record v. Town of McCandless, 555 Pa. 51, 722 A.2d 1037, 1038 (1999) (citing Community College of Philadelphia v. Brown, 544 Pa. 31, 674 A.2d 670, 671 (1996); Wiley v. Woods, 393 Pa. 341, 141 A.2d 844, 849 (1958)).¹ In McMullan v. Wohlgemuth, 453 Pa. 147, 308 A.2d 888 (1973), we stated:

Appellees also contend they are entitled to the information they seek under the common law of this Commonwealth. Such an assertion must be dismissed. As this Court said in Mooney v. Temple University Board of Trustees, 448 Pa. 424, 429-430, n. 10, 292 A.2d 395, 398, n. 10 (1972): "It is unquestioned that the right to inspect public documents was no broader at common law than it is presently under the statute (`Right to Know Act', supra); it may have been more restricted by being limited only to persons with a `personal or property interest' in the matter sought to be disclosed. Wiley v. Woods, 393 Pa. 341, 347-350, 141 A.2d 844, 848-849 (1958). Therefore, disposition of appellant's claim under the Inspection and Copying Records Act (`Right to Know Act,' supra) a fortiorari resolves appellants' claim at common law." (emphasis added.)

Id., at 895; see also 1 Pa.C.S. § 1504 ("In all cases where ... anything is directed to be done by any statute, the directions of the statute shall be strictly pursued....").

Cases under the Right to Know Act have not undone the previously recognized common law right of access to specific public judicial records. Fenstermaker, at 419-20 (Act "pertains only to agencies rather than to the judiciary"). If the General Assembly wished to create a right to access similar legislative information, it would have done so through the Act. See, e.g., Consumers Education and Protective Ass'n v. Nolan, 470 Pa. 372, 368 A.2d 675, 680-81 (1977) (General Assembly defined "agency" to include General Assembly in "Sunshine Act," Act of July 19, 1974, P.L. 486, 65 P.S. §§ 261-269, repealed Act of July 3, 1986, P.L. 388). Any right of access under the common law was supplanted when the General Assembly defined the term "agency"; it did not include members of the General Assembly. To conclude such access exists would be tantamount to rewriting the definition of "agency" in the Act. The Act embodies a policy of broad disclosure, but we are constrained by the words chosen by the General Assembly. North Hills, at 1040 n. 4. Moreover, the General Assembly already provides public access to certain information. Accordingly, the Commonwealth Court properly determined there is no common law right of access to legislative records.

Appellants next contend the Commonwealth Court abused its discretion in concluding appellants abandoned their First Amendment claim by failing to argue the issue in their brief. Appellants initiated this action by invoking the Commonwealth Court's original jurisdiction pursuant to 42 Pa.C.S. § 761(a). Appellants' petition for review was in the nature of a complaint for declaratory judgment and "other relief as [the Commonwealth Court] deems just and equitable." See Pa.R.A.P. 1502. Preliminary...