Uniontown Newspapers, Inc. v. Roberts
| Decision Date | 31 May 2001 |
| Parties | UNIONTOWN NEWSPAPERS, INC., t/d/b/a the Herald-Standard, a corporation, and Paul Sunyak, an individual, Petitioners, v. Lawrence ROBERTS, in his capacity as a member of the General Assembly of Pennsylvania, Respondent. |
| Court | Pennsylvania Commonwealth Court |
Scott E. Henderson, Pittsburgh, for petitioners.
C. Clark Hodgson, Jr., Philadelphia, for respondent.
Before DOYLE, President Judge, COLINS, McGINLEY, PELLEGRINI and FRIEDMAN, Judges.
Uniontown Newspapers, Inc. and Paul Sunyak, a reporter for Uniontown Newspapers, (collectively referred to as Petitioners), commenced an original action in this Court seeking to compel Lawrence Roberts, a member of the General Assembly of Pennsylvania (hereinafter referred to as Respondent/Representative Roberts), to make available certain telephone records for which Respondent received reimbursement from public funds appropriated by the General Assembly of Pennsylvania. In response to Petitioners' Petition for Review, Respondent filed preliminary objections in the nature of a demurrer, which are now before this Court.1 The pertinent factual background is as follows. On April 10, 2000, Petitioners submitted a written request to Respondent to provide the Herald-Standard, a Uniontown, Pennsylvania newspaper owned by Uniontown Newspapers, copies of certain telephone records for which he sought reimbursement from the House of Representatives. Specifically, Petitioners requested Respondent's (1) itemized cellular telephone records, (2) long distance telephone records from his Harrisburg and Uniontown legislative offices, and (3) long distance records from his residential line.2
On May 9, 2000, Chief Counsel to the House Democratic Caucus wrote to Petitioners advising that (1) the Right-to-Know Act (Act)3 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 those grounds, Respondent refused to make available the telephone records requested by Petitioners.4
It is admitted by both parties that, prior to the filing of Petitioners' petition for review, Respondent made his telephone records available to other members of the press. However, it is Respondent's position that he only made those records available under the condition that his "objectives of privacy and confidentiality of the communications were upheld in those disclosures." .) In addition, Respondent did offer to make available his telephone records to the Herald-Standard if the newspaper would assign a reporter other than Mr. Sunyak to review those documents.5 The Herald-Standard rejected this condition.
Consequently, on September 1, 2000, Petitioners filed a petition for review arguing that they have a First Amendment6 and Common Law right of access to Respondent's telephone records. Petitioners further contend that Respondent violated Petitioners' civil rights by providing the telephone records to other media personnel, but not to Petitioners. Respondent thereafter filed the present preliminary objections in the nature of a demurrer to all counts contained in the petition for review.
While both parties agree that the Right-to-Know Act does not apply to Rep. Roberts, an analysis of the Act is nevertheless needed in order to adequately address the issue of a common law right of access. Respondent argues that the Right-to-Know Act is the only vehicle by which Petitioners may obtain public records, and, because Respondent does not fall within the purview of the Act, Petitioners are not entitled to the requested telephone records.
Section 2 of the Act, 65 P.S. § 66.2, provides that, "Every public record of an agency shall, at reasonable times, be open for examination and inspection by any citizen of the Commonwealth of Pennsylvania." (Emphasis added.) Section 1 of the Act, 65 P.S. § 66.1(1), defines "agency" as follows:
(1) "Agency." Any department, board or commission of the executive branch of the Commonwealth, any political subdivision of the Commonwealth, the Pennsylvania Turnpike Commission, or any State or municipal authority or similar organization created by or pursuant to a statute which declares in substance that such organization performs or has for its purpose the performance of an essential governmental function.
It is conceded by Petitioners that Roberts is a member of the legislative branch of government, and thus does not fall within the definition of "agency" as that term is defined by the Act. Petitioners maintain, however, that, even though the Act does not apply to Respondent, there is a common law right of access to public records that affords Petitioners access to Rep. Roberts' telephone records. Respondent argues, on the other hand, that there never was a common law right of access to legislative records, and, even if there was such a right, it was subsumed and superseded by the Right-to-Know Act.
Common Law Right of Access
While Petitioners set forth their argument in broad terms, i.e., that there is a general common law right of access to public records, we believe that our analysis must focus on a more narrow question, that is, whether there is a common law right of access to public records of the legislative branch of government. It is true that our courts have recognized the right to an examination of certain public records, either under a statutory grant or on common law principles. See Commonwealth v. Fenstermaker, 515 Pa. 501, 530 A.2d 414 (1987)
(); Wiley v. Woods, 393 Pa. 341, 141 A.2d 844 (1958) (); In re Simon, 353 Pa. 514, 46 A.2d 243 (1946) (). However, we find no reported decision extending the right of access to public records of the legislative branch.
Petitioners rely heavily on Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978) and Fenstermaker, to support the proposition that there is a common law right of access in Pennsylvania. In Nixon, members of the media sought access to certain tape recordings of President Nixon's White House conversations. These tapes were the subject of a criminal trial and were admitted into evidence. It was the media's position that a common law right existed which entitled them to access to the tapes. Petitioners cite us to a general passage contained in the opinion of the U.S. Supreme Court wherein the Court stated that "[i]t is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents." Id. at 597. First, the Court cited several state court decisions to support this proposition, none of which were Pennsylvania decisions. Second, the use of the words "general right" does not automatically extend to every public record or document that exists.
In order to properly apply Nixon, the underlying fabric of the case must be analyzed to determine its precedential value. While the Supreme Court reiterated a broad proposition, the holding is actually narrow in its application, and limited to the specific circumstances of that case. Nixon dealt with a common law right of access to judicial records and the Court ultimately held that the press had no common law right to the tape recordings. Instrumental in the Court's decision was the critical fact that Congress had enacted a statute which governed disclosure and access to such materials. The Court held that the Presidential Recordings Act7 obviated exercise of the common law right in that particular case. Because Nixon concerned judicial records, as opposed to legislative records, and because access to judicial records is a well-developed and acknowledged principle, see Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980),
we believe that Nixon is inapplicable, and, therefore, does not control the outcome of the present case.
Petitioners' reliance on Fenstermaker is likewise misplaced. In that case, the press sought to inspect and copy affidavits supporting arrest warrants in a criminal case. In holding that the press had a right to the affidavits, the Pennsylvania Supreme Court relied on the well established right of access to records in the context of a criminal trial. Fenstermaker does not recognize a right of access to records outside of the criminal justice arena, and we decline to extend such a right to the legislative branch of government, especially in a civil proceeding.
Petitioners bring to our attention this Court's opinion in PG Publishing Company v. County of Washington, 162 Pa. Cmwlth. 196, 638 A.2d 422 (1994), arguing its similarities to the present case. In that case, newspapers sought and were granted access to itemized telephone bills of county officials. But PG Publishing is also inapplicable because it was decided squarely under the Right-to-Know Act, and we held that, because the county officials were deemed part of an agency, the Act applied, resulting in the discovery of the telephone records. That case did not even address a common law right to access. In the present case, Respondents are not covered by the Act, and, therefore, PG Publishing is of no avail to Petitioners.
After an exhaustive review of appellate case law, and considering all of the circumstances of this case, we believe that there is no legal precedent to support the proposition that there is a common law right of access to legislative records. Petitioners have failed to provide ...
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Uniontown Newspapers, Inc. v. Roberts
...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 (1) Whether there is a common law right of access by the ......