DA Asks Appeals Court to Reverse Finding of Bad Faith in Transparency Case

By Austin Nolen

Last Thursday, the Philadelphia District Attorney’s Office asked a state appeals court to reconsider its ruling that the Office acted in bad faith during a dispute under Pennsylvania’s public records law.

Pennsylvania’s Commonwealth Court on February 16th upheld a decision by a Philadelphia Common Pleas Court judge to fine the District Attorney’s Office $500.

Penn State alumnus Ryan Bagwell in 2013 requested the release of emails Frank Fina sent or received as a District Attorney’s Office employee as part of a campaign to increase transparency at his alma mater.

Fina helped to prosecute Jerry Sandusky under former Pennsylvania Attorney General Tom Corbett. He later went to work with Seth Williams at the District Attorney’s Office in Philadelphia and earned public notoriety during the drawn out “Porngate” scandal.

The District Attorney’s Office initially denied Bagwell’s request, so he appealed the decision to Pennsylvania’s Office of Open Records. The Pennsylvania Office demanded that the District Attorney turn over the records. Bagwell took the matter to court after the District Attorney remained staunch in its refusal to release them.

During his lawsuit, Bagwell asked to discover technical documents about the City’s e-mail system to better understand how city officials save and search for sent emails. The judge deemed these documents irrelevant to the lawsuit and denied the request.

Bagwell then filed a separate Right to Know request for similar information, which the District Attorney also denied, arguing the judge’s previous order that barred civil discovery of the records also exempted them from the Right to Know Law.

Pennsylvania’s Office of Open Records sided with Bagwell a second time and the District Attorney appealed that decision.

Philadelphia Court of Common Pleas Judge Linda Carpenter ruled in 2015 that a bar on civil discovery did not translate into a Right to Know Law exemption. She also fined the District Attorney’s Office $500 for misrepresenting appeals court decisions under the Right to Know Law.

Pennsylvania’s Commonwealth Court, which hears appeals related to government agencies, affirmed this fine. The Commonwealth Court also noted that while discovery requests must be “relevant” to litigation,

“under the RTKL, the requester is empowered by the legislature … to go [on a] fishing [expedition], an exercise that is strictly prohibited even under the broad scope of the discovery rules and the liberal history of discovery in this Commonwealth.”

The appeals court for this reason held that an order finding records irrelevant for discovery cannot also block a Right to Know request. Only a protective order signed by a judge to categorically protect records from any disclosure would have that function.

“From the initial response … to the petition for Review,” the appeals judges asserted, “the record is replete with evidence of the District Attorney’s bad faith in denying Requester access to public records.”

The panel agreed with Judge Carpenter that “the District Attorney’s representation of binding precedent and the state of the law in this Commonwealth throughout these proceedings was deficient at best.”

The judges also suggested that the District Attorney lawyers assigned to the case crossed “the line between zealous advocacy and failure to adhere to counsel’s duty of candor towards the tribunal.” In doing so, the judges implied, these attorneys violated their professional ethical obligations.

The reargument petition filed last Thursday claims that the District Attorney’s Office only failed to persuade the judges of a given point of view and did not misrepresent any precedent. For this reason, the Office argues, they cannot be found to have acted in bad faith

In a statement, Bagwell told The Declaration that Pennsylvania’s Right to Know Law “clearly states that an agency cannot deny a public records request based on the motivation of the requester. Sadly, the [District Attorney] decided to ignore that decree and deny access.”

Bagwell suggested he will try to pursue further sanctions against the District Attorney’s Office in this case. He argued “it’s time for the District Attorney’s office to give up, accept defeat and provide the records as ordered by [Pennsylvania’s] Office of Open Records two years ago.”

The application for reargument also points out that “bad faith rulings … are not made against mere arguments … they are made against people.” Such rulings, according to the application, can have the effect of “smearing” the District Attorney’s Office personnel assigned to the case.

One of those personnel was Elizabeth “B.J.” Graham-Rubin, who served as both the District Attorney’s Civil Litigation Unit Chief and Right to Know Officer until last month. In that dual role, Graham-Rubin oversaw and participated in the Bagwell case.

In February, Graham-Rubin was assigned to lead an “enhanced” Conviction Review Unit for the District Attorney after its predecessor suffered negative press. The announcement of the new unit emphasized its independence from other staff prosecutors.

A spokesperson for the District Attorney declined to comment on whether courts’ findings of bad faith against Graham-Rubin and her subordinates cast doubt on her ability to independently review possible wrongful convictions.

In a written statement, District Attorney candidate Tariq El-Shabazz told The Declaration that while “each Right to Know request is unique, I would ensure a fair interpretation of the law balancing individual privacy rights with the public’s interest in access to information.”

Candidates Larry Krasner and Joe Khan were more forceful. Krasner said the dispute between Bagwell and the District Attorney’s Office was troubling as it “doesn’t pertain to any criminal cases, active or otherwise, that could be endangered by the release of information.”

Khan’s campaign promised he would “run the most transparent office in history and set an example for openness” if he is elected.

The other District Attorney candidates either did not respond to or declined requests for comment. Some of the campaigns cited tomorrow’s deadline for nomination petitions.

View the District Attorney’s petition for reargument as well as other court decisions in this case here.

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Disclosure: The Declaration’s co-editor Dustin Slaughter is an employee of Larry Krasner’s law firm and is involved in his political campaign. Dustin did not take any part in putting this story together, nor in any other stories about the 2017 District Attorney’s race.

The Krasner campaign website previously featured a photo taken in a personal capacity by The Declaration’s staff photographer Kristi Petrillo. Kristi is not a volunteer for or otherwise associated with the campaign and did not receive any compensation for the photo.