PHL Sunshine Project: Where do the DA Candidates Stand on Transparency?

By Austin Nolen

The 2017 race for Philadelphia’s next District Attorney has become a referendum on the criminal justice system as a whole. The candidates are vying over whose ideas can best fix the city’s law enforcement problems

One of the greatest criminal justice challenges Philadelphia faces, from the District Attorney to other players such as the police and the courts, is a lack of transparency. Yet the candidates have been asked few questions about what they plan to do to increase the sunshine on their operations.

The Declaration reached out to all eight candidates and received varying responses from six, discussing their philosophies and practical plans for openness in office.

The District Attorney’s Office can’t set a standard for transparency in Philadelphia law enforcement if its own operations are completely opaque. Yet, for years, the Office and its occupants have cared little about the ability of the public to understand their work.

Take the case of Ryan Bagwell. Bagwell is a Penn State alumnus who campaigns for greater transparency at the university.

As we previously reported, Bagwell filed a Right to Know request for technical email records to support a separate RTKL lawsuit against the DA for the emails of Frank Fina. Fina, later infamous for Porngate, helped investigate the Jerry Sandusky case before joining the DA’s Office.

The DA denied this request on grounds that have been rejected by every judge to look at the case. First, the state Office of Open Records ordered the technical documents released.

When the District Attorney appealed, the Court of Common Pleas fined the Office for its bad faith. The Commonwealth Court affirmed that fine on appeal.

Even then, however, the DA filed a request for a reargument, unable to accept its error. That petition for a rehearing was denied last month.

The candidates offered different plans to fix this contempt for the public’s right to know. Larry Krasner asserted that, as District Attorney, he would only seek to withhold information that could undermine criminal investigations.

“It is vital that we change the current culture within the District Attorney’s Office,” Krasner told The Declaration. “This naturally includes a shift in attitude within the Office’s Right to Know unit.”

Joe Khan and Michael Untermeyer took similar positions, with Khan promising to run “the most transparent DA’s Office in history” and Untermeyer stating even if a document is technically exempt, “if it’s something that should legitimately be released, it should be released.”

Rich Negrin steered a middle course, emphasizing the transparency initiatives he was involved in as the City’s former Managing Director, but stressing that openness in the DA’s Office could be different than other agencies, because as the legal representative of the state in criminal court, many of its records are privileged.

Tariq El-Shabazz and Beth Grossman were the most cautious. “Every request must be evaluated upon its own merits,” Grossman told The Declaration, to see “whether any applicable privileges may be asserted.”

Likewise, El-Shabazz gave an answer disclaiming any overall policy of openness. “Each Right to Know is unique to the facts and circumstances of the situation as District Attorney,” he wrote in a statement.

Teresa Carr-Deni and Jack O’Neill did not provide any response to requests for comment.

Khan, Krasner, Negrin and Untermeyer also explained how their philosophies on transparency would play out in two different scenarios. El-Shabazz and Grossman did not.

Over the summer, The Declaration sought a copy of the District Attorney’s policy manual. The Office first denied they even had one and then admitted that they had a training manual with policies in it. However, much of this training manual is still being withheld on the grounds that it is privileged attorney work product.

Khan, Krasner and Untermeyer all committed to waiving the privilege to release most of the manual. They drew the line at releasing legal strategies for specific cases, but they all want to release general legal interpretations that the Office follows.

Khan, for instance, is used to having his general policy book fully open. When he served as an Assistant U.S. Attorney, the policies and general legal decisions he operated under were all available to the public in the U.S. Attorneys’ Manual.

Negrin did not comment on whether he would waive privilege, but did say he would make sure all basic policies of the Office are written down and made public — an important commitment, because many of the DA’s current policies exist only in traditions and verbal commands, not in writing for easy review by the public that the Office is supposed to serve.

These four candidates also said that they plan to go beyond the law’s requirements in another area: police shootings. In 2016, Seth Williams instituted a policy to allow limited public access to investigative records in cases where the DA declines to prosecute the officers in these cases.

Under state law, the DA is not required to disclose those records to the public. Yet Khan, Krasner, Negrin and Untermeyer all committed to continuing or even strengthening this public access policy.

Decades ago, the U.S. Supreme Court noted that openness in the criminal justice system helped to assure “that the proceedings were conducted fairly to all concerned, and it discouraged perjury, the misconduct of participants, and decisions based on secret bias or partiality.”

The Declaration is not supporting any specific candidate, but we hope that the voters of this city elect one of the candidates committed to moving the DA’s Office and our criminal justice system as a whole towards greater transparency.

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.

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