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Justice System

From the archives 2022

Judge admonishes Pa. State Police for response to request seeking email, phone records

by Gary Harki of Spotlight PA |

The rare public records lawsuit centers on whether data held by the agency’s cell phone provider must be turned over in response to a state Right-to-Know request.
Kent M. Wilhelm / Spotlight PA

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HARRISBURG — A judge last week scolded the Pennsylvania State Police for the agency’s poor response to a reporter seeking trooper emails, text messages, and voicemails — some of which may no longer exist.

At issue was whether the State Police had the power to provide their own phone records to a freelance journalist requesting trooper communications about protests of Sunoco’s 350-mile Mariner East pipeline.

Attorneys for the State Police argued the agency didn’t have the records or the authority to request them from Verizon, its cell phone contractor.

After the hearing, attorneys for the reporter wrote in a filing that the Verizon contract includes a provision that makes it clear that such records must be released under the state’s Right-to-Know Law and the State Police should provide them.

Verizon told Spotlight PA that providing the voicemails and texts from years ago is now impossible — they no longer exist.

“At this point, we do not have access to any customer emails or voicemails,” wrote Rich Young, a corporate communications director for Verizon. “Our retention periods for text message data (and especially message content) are very brief.”

The hearing, which was often contentious, started with Commonwealth Court Judge Ellen Ceisler questioning Emily Rodriguez, an attorney for the State Police, about the blacking out of emails sent to reporter Dan Schwartz.

“They did get it eventually,” Rodriguez said of the unredacted emails.

“Yeah, I understand, but it is still glaring to see every piece of information blacked out,” Ceisler said, adding that there was no clear explanation for the State Police’s redactions.

Schwartz filed his request for emails, text messages, and voicemails in March 2021. The State Police initially provided emails, many of which were heavily blacked out. They said no text messages or voicemails existed but failed to provide an affidavit, a legally required document explaining that.

Schwartz then filed a petition with the Pennsylvania Office of Open Records, which prompted the State Police to produce less redacted copies of the emails. Still, troopers did not produce voicemails, text messages, or a full account of how they searched for the records, as required by law.

Rodriguez told the judge that the State Police could not produce voicemails and texts because Verizon would not release them without a court order or a subpoena.

“Ultimately the records were not in the possession or control of the Pennsylvania State Police and that was the bottom line,” she said. “I appreciate the state of the law hasn’t caught up with the technology and they don’t like it, but that’s where we are.”

Paula Knudsen Burke, one of Schwartz’s attorneys and counsel for the Reporters Committee for Freedom of the Press, a journalism-focused legal services group, told the judge the case had serious implications for similar public records requests of phone records. Most requesters don’t have the means to take their cases to court.

“There has to be some additional recourse,” Burke said. Government agencies “can’t place records with a third-party vendor and say they can’t get those records.”

Rodriguez said that there was no legal way to file a subpoena under the Right-to-Know Law and that the State Police could not file one for the phone records. She also said the Verizon contract was held by another state agency.

Ceisler questioned why the issue of needing a subpoena had not come up earlier.

“You could have included all this [in responses to the request], which would have put us all in the position of not being blindsided by this,” she said to Rodriguez.

The judge had planned on filing a court order compelling Verizon to produce the State Police voicemails and text messages in the coming weeks. It’s not clear what will happen now that Schwartz’s lawyers filed a petition that included the contract, which states Verizon must comply with records requests. Ceisler also still has to rule on whether the State Police must pay attorneys fees to Schwartz’s lawyers.

Cases like this are rare because of the way the state’s Right-to-Know Law is set up, said Melissa Melewsky, in-house counsel for the Pennsylvania NewsMedia Association, of which Spotlight PA is a member.

Taking a public records case to court can be expensive, and even if a petitioner wins, there’s no guarantee the state will have to pay their attorneys fees. That means most cases are taken by lawyers from places like the Cornell Law School First Amendment Clinic and the Reporters Committee for Freedom of the Press, which took Schwartz’s case, or never make it in front of a judge.

“In most cases, if you take a state agency to court and win you will not be reimbursed,” Melewsky said. “You’ll get your records, but you’ll also be out likely thousands of dollars. That’s a significant barrier to access and a significant deterrent to people pursuing public access rights under Pennsylvania law.”

Schwartz, a freelance journalist based in Colorado, said it was reassuring to hear the judge’s comments and her order to release information.

“I think as a journalist and a member of the public it is easy to lose faith,” he said. “It’s beyond nice to have faith in the judiciary in matters of public records.”

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