County court employee e-mails exempt from Right to Know Law
BY AMANDA LEIGH BROZANA | [Pottsville] Republican-Herald
A decision by the Commonwealth Court to make e-mails of employees of court offices exempt from the Right to Know Law is broad in the eyes of open records experts and the state Office of Open Records - but they say it shouldn't stop people from making requests.
The case involved the request of a Scranton Times-Tribune reporter who sought "inappropriate e-mails" sent and received by Lackawanna County's director of domestic relations, Pat Luongo, who had been suspended for receiving and distributing such e-mails in the summer of 2009. In Lackawanna County, like Schuylkill County, the director and staff of the domestic relations office are classified as employees for the county's court of common pleas.
The Times-Tribune and The Republican-Herald are both owned by Times-Shamrock Communications.
State Office of Open Records Deputy Director Barry Fox said in a telephone interview Monday that this month's decision is broad in its ruling, but will not change the way the office advises those seeking to request documents.
"We don't want people to not make a request. You don't know (what's available) until you make a request," Fox said. "It certainly doesn't eliminate all e-mails as public records."
Robert D. Richards, an attorney and professor at Penn State who serves as vice president of the Pennsylvania Freedom of Information Coalition, said that traditionally, court records have been confidential.
"The judiciary, for pretty much its whole history prior to the (2009) Right to Know Law, was exempt. When this new law went into effect, there had been a lot of discussion in the days, months and years leading up to it as to how many judicial records would be open with that act," Richards said.
Richards said the only records guaranteed to be open to the public regarding the judiciary were financial in nature, according to the new law.
"Clearly, the Commonwealth Court has read that very strictly," Richards said.
So strictly that according to Judge Dan Pellegrini, who wrote the court's decision, even though Luongo was an employee paid by the county, his work and supervision by the county court shielded the requested e-mails.
Richards said the Commonwealth Court upheld the ruling by the Office of Open Records, "It's clear that there's a lot of information that the public and the news media might want to find out with respect to the judiciary - but with this decision, much of that will be foreclosed from (them) unless the judiciary someday down the road changes its ruling."
However, Richards said he believed the court could have fashioned a ruling that was less broad.
"I think the court could have, if it wanted to, more narrowly construed those records," Richards said.
Fox said the office often discusses with those seeking information how best to make their requests so they are clear as to what information they are seeking.
He said as the office and courts continue to work with the relatively new law, parameters of it are being continuously defined.
Charles Schillinger, the reporter, was initially denied access to the e-mails, but upon appeal to the state Office of Open Records, access was granted.
However, the Administrative Office of the Pennsylvania Courts filed an injunction on behalf of Lackawanna County in January, and upon appeal to the Commonwealth Court, Schillinger was denied access to the e-mails because, as Pellegrini wrote, the legislature or governor's office, or one of its administrative agencies like the Office of Open Records, "may constitutionally infringe upon the powers or duties of the judiciary."
Pellegrini, Patricia A. McCullough and Johnny J. Butler served as the justices in front of whom the case was presented.
Pellegrini said that one such power of the judicial branch was to "supervise its own personnel without interference from another branch of government."
Fox said the Office of Open Records is taking some time to look at the ruling and decide if they will appeal the Commonwealth Court's ruling.
Richards is not optimistic about a reversal on appeal.
"I don't hold out a whole lot of hope that the Pennsylvania Supreme Court would tinker with what the Commonwealth Court did," Richards said.
A decision by the Commonwealth Court to make e-mails of employees of court offices exempt from the Right to Know Law is broad in the eyes of open records experts and the state Office of Open Records - but they say it shouldn't stop people from making requests.
The case involved the request of a Scranton Times-Tribune reporter who sought "inappropriate e-mails" sent and received by Lackawanna County's director of domestic relations, Pat Luongo, who had been suspended for receiving and distributing such e-mails in the summer of 2009. In Lackawanna County, like Schuylkill County, the director and staff of the domestic relations office are classified as employees for the county's court of common pleas.
The Times-Tribune and The Republican-Herald are both owned by Times-Shamrock Communications.
State Office of Open Records Deputy Director Barry Fox said in a telephone interview Monday that this month's decision is broad in its ruling, but will not change the way the office advises those seeking to request documents.
"We don't want people to not make a request. You don't know (what's available) until you make a request," Fox said. "It certainly doesn't eliminate all e-mails as public records."
Robert D. Richards, an attorney and professor at Penn State who serves as vice president of the Pennsylvania Freedom of Information Coalition, said that traditionally, court records have been confidential.
"The judiciary, for pretty much its whole history prior to the (2009) Right to Know Law, was exempt. When this new law went into effect, there had been a lot of discussion in the days, months and years leading up to it as to how many judicial records would be open with that act," Richards said.
Richards said the only records guaranteed to be open to the public regarding the judiciary were financial in nature, according to the new law.
"Clearly, the Commonwealth Court has read that very strictly," Richards said.
So strictly that according to Judge Dan Pellegrini, who wrote the court's decision, even though Luongo was an employee paid by the county, his work and supervision by the county court shielded the requested e-mails.
Richards said the Commonwealth Court upheld the ruling by the Office of Open Records, "It's clear that there's a lot of information that the public and the news media might want to find out with respect to the judiciary - but with this decision, much of that will be foreclosed from (them) unless the judiciary someday down the road changes its ruling."
However, Richards said he believed the court could have fashioned a ruling that was less broad.
"I think the court could have, if it wanted to, more narrowly construed those records," Richards said.
Fox said the office often discusses with those seeking information how best to make their requests so they are clear as to what information they are seeking.
He said as the office and courts continue to work with the relatively new law, parameters of it are being continuously defined.
Charles Schillinger, the reporter, was initially denied access to the e-mails, but upon appeal to the state Office of Open Records, access was granted.
However, the Administrative Office of the Pennsylvania Courts filed an injunction on behalf of Lackawanna County in January, and upon appeal to the Commonwealth Court, Schillinger was denied access to the e-mails because, as Pellegrini wrote, the legislature or governor's office, or one of its administrative agencies like the Office of Open Records, "may constitutionally infringe upon the powers or duties of the judiciary."
Pellegrini, Patricia A. McCullough and Johnny J. Butler served as the justices in front of whom the case was presented.
Pellegrini said that one such power of the judicial branch was to "supervise its own personnel without interference from another branch of government."
Fox said the Office of Open Records is taking some time to look at the ruling and decide if they will appeal the Commonwealth Court's ruling.
Richards is not optimistic about a reversal on appeal.
"I don't hold out a whole lot of hope that the Pennsylvania Supreme Court would tinker with what the Commonwealth Court did," Richards said.
