From the PNA Legal Hotline

By Melissa Melewsky, Media Law Counsel
Pennsylvania Newspaper Association

Q: Are affidavits of probable cause public records? I requested a copy from the District Attorney’s Office and was denied based on the Right to Know Law.

A: Affidavits of probable cause are judicial records, which are public and attainable from the court in which they are filed pursuant to the Constitutional presumption of access and common law.

The Constitutional presumption of access is enshrined in the United States and Pennsylvania Constitutions as well as common law all, of which guarantee open courts.

As a general rule, records filed with a court are presumptively public and may only be withheld from public access when a party seeking closure makes a showing of good cause, on the record, supporting the need for closure. In the absence of a seal order, affidavits of probable cause are public records and must be provided to the public. Courts are permitted to charge fees for copies of judicial records, and the fee schedule varies from county to county.

The District Attorney’s (DA) office is not subject to the Constitutional presumption of access that attaches to courts, and prosecutors rely on the Right to Know Law as a basis for denial. After an affidavit of probable cause or other criminal record is filed with the court, the DA’s office retains a copy in their files. Records in the possession of the DA are subject to the public access mechanisms of the Right to Know Law.

However, the criminal investigation exception in section 708(b)(16) exempts many records relating to or resulting in a criminal investigation, and the exception provides a basis for denial. Even though prosecutors can deny access to affidavits in their possession, they are not required to do so, and many voluntarily release such records in the public interest.

Journalists seeking access to judicial records like affidavits of probable cause should request access from the court where the record was filed. Such records must be provided by the court unless the record has been sealed. Journalists can also request access from the DA although the right of access may be limited by the Right to Know Law.