The complicated situation in Centre County involving the Right-to-Know law got a bit more complicated Monday.
The state Office of Open Records granted Centre County Chief Public Defender Dave Crowley’s appeal Monday, ordering Centre County government to turn over cellphone billing records involving Judge Bradley P. Lunsford and the District Attorney’s Office within 30 days in a ruling that contradicts a judge’s previous orders.
In May, Crowley submitted a Right-to-Know request to the county government for Lunsford’s records, with all communications except those between the judge and members of the District Attorney’s Office redacted, during time frames that corresponded with eight cases handled by his office.
The county denied the request, citing court orders handed down by Huntingdon County Senior Judge Stewart L. Kurtz prohibiting the county from responding to requests involving the judiciary, and instead told Crowley to forward the request to Court Administrator Kendra Miknis, the Right-to-Know officer for judges.
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Miknis also denied the request. Crowley appealed the denials later that month, asking that the Open Records Office order the county to release the records because, he argued, they were public records subject to disclosure under the Right-to-Know law.
Charles Rees Brown, chief counsel with the Office of Open Records, agreed with Crowley in the determination handed down Monday. Brown wrote that because the records requested were bills created by a third party, in this case Verizon Wireless, and not created by judicial officials, they were financial records subject to disclosure under the law.
The ruling contradicts Kurtz’s orders in the cases of District Attorney Stacy Parks Miller, District Judge Kelley Gillette-Walker and Common Pleas Judge Jonathan D. Grine.
Kurtz found cellphone communication records to be judicial records and not subject to disclosure under the state Right-to-Know law. The orders also stipulated that the county had been wrong to disclose the records in each case and enjoined the county from producing records of the judiciary, including Parks Miller, and instead instructed the county to forward future requests to officials in the judiciary or District Attorney’s Office to be handled.
Brown wrote that the portion of the order prohibiting production of the records no longer applies.
“As set forth above, however, the requested billing records were not created by a judicial agency, and, therefore, are not judicial records,” the determination read. “As a result, the requested billing records do not fall within the scope of the foregoing court order. As the parties have raised no other bases for withholding the requested billing records, these records are subject to public disclosure.”
The county has not yet turned over any of the requested documents to Crowley, county Administrator Tim Boyde said, because the county will have to review the determination with its attorneys and because the parties involved have 30 days to appeal it to the Centre County Court of Common Pleas.
“At this point, we’re looking at all the various options on how to proceed,” county attorney Mary Lou Maierhofer said, adding that the ruling was “absolutely” a victory for her clients.
The ruling is in line with arguments her clients have made all along — that the phone records were financial records accessible upon request under the Right-to-Know law — and, she said, the ruling from the office “validates” the way the county had been handling the requests before Kurtz’s order.
Maierhofer also pointed to a passage in the document that said that, although the county responded to the request, the response was actually late. Agencies must respond to a request within five days or they are automatically “deemed denied” and subject to appeal.
Maierhofer said this portion doesn’t bode well for arguments by Parks Miller’s attorneys seeking to find the county in contempt of court because the request was actually denied before the county responded and the denial would have been appealed either way.
“It was deemed denied and I think that undercuts their motion for contempt more than our filings to date,” Maierhofer said.
Bruce Castor Jr., Parks Miller’s attorney, disagrees.
Castor filed to have the county held in contempt of court for violating Kurtz’s order because, he argued, even though the county didn’t hand over any documents, the county’s denial still constitutes a response and opened the door for a response to the open records office.
“What Judge Kurtz ordered supersedes any ruling made by the Office of Open Records since the appeal from the OOR is to the Common Pleas Court,” Castor said. “That means Judge Kurtz, as a member of the Common Pleas Court, is a higher authority than the OOR. Plus he has the power to put people in jail for violating his orders and the OOR does not, so far as I know.”
The situation created by the determination Monday was deliberately created by the county to set up a “legal contradiction.” Castor said. He also described the situation as a waste of resources, arguing that it opens up another avenue of appeal when Kurtz’s orders are already being appealed to the state Commonwealth Court.
Castor also pointed out inconsistencies in previous rulings made by the office involving communication records in Centre County.
In June, the office denied an appealed request for telephone billing and text records of Gillette-Walker and Grine from Pennsylvanians for Union Reform, a Bucks County-based nonprofit group, because the office concurred with Kurtz and found the records to be judicial and not subject to their jurisdiction or disclosure.
Crowley said he wasn’t sure how the appeal would turn out, especially after the other response Castor mentioned was shot down. As time grew, he said, he was more hopeful, and he said Monday that he was pleased the Open Records Office accepted his argument and ruled in his favor.
The ongoing legal battle between county officials and Parks Miller and members of the judiciary did not factor in his request or the appeal, Crowley said.
“It’s always about representing our clients. As public defenders, we don’t have broad strategic objectives,” Crowley said. “It’s about representing our clients and if they’ve been given a fair shake. That’s what it’s all about and that’s what it’s always been about.”