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Attorneys for Roberts, newspaper argue phone record case before state Supreme Court

By Jennifer Harr 5 min read

Attorneys for the Herald-Standard and state Rep. Larry Roberts (D-South Union Twp.) squared off before the state Supreme Court Thursday, arguing whether the Fayette County representative should be forced to turn over itemized, taxpayer funded phone bills. The seven-justice panel, headed by Chief Justice Ralph Cappy, heard from newspaper attorney Charles Kelly of Cannonsburg and C. Clark Hodgson of Philadelphia, who represents Roberts.

While Kelly argued that Roberts was bound to release the records under constitutional provisions and the Common Law Right of Access, Hodgson claimed that neither applied because Roberts is entitled to immunity from releasing the records because if his job.

The Herald-Standard and reporter Paul Sunyak filed suit against Roberts in 2000 in an attempt to force him to turn over itemized long distance and cellular telephone bills for which he was reimbursed by the state.

The Commonwealth Court denied the request in 2001 and the newspaper asked the Supreme Court to hear the case. The state’s highest court agreed, and scheduled Thursday’s arguments. The Commonwealth Court ruled that Roberts did not have to release the documents because he has legislative immunity. That means that the court believes that phone records fall within the sphere of things which legislators are not bound to release.

The crux of the newspaper’s claim is that Roberts is required to hand over the bills because, as a public office holder, he is bound to show his expenditures. The newspaper also claims that Roberts forfeited any right to privacy for those phone records when he showed them to three competing news outlets, but refused to show them to Sunyak.

Kelly argued that the Commonwealth Court offered too broad an interpretation of Roberts’ legislative immunity when they used that as a reason for turning down the newspaper’s request for the records.

“Once the state representative decided to share these records with three others, there’s no legislative immunity,” said Kelly, noting that he does not believe immunity applies to phone records.

Hodgson said that the newspaper had equal chance to get the records as the other three news organizations, but declined to do so because Roberts said he would not release the records to Sunyak. Roberts, according to Hodgson, offered to release them to any other reporter.

Kelly said such an offer amounted to an attempt to control the press.

“That is a First Amendment violation. (Roberts) wants to try and pick the reporter so he gets the content he wants,” said Kelly, noting that Roberts approached the Herald-Standard publisher and editor to complain about Sunyak.

Although Hodgson said Roberts was willing to release the records, he noted that “media curiosity” alone is not enough reason to open up phone records to the public. He argued that opening such records could breach the privacy of Roberts’ constituents.

“Telephonic communication, communication overall, is so integral that it’s within the sphere (of Legislative Immunity),” said Hodgson. “(The records) deserve to be protected for all the reasons legislative immunity has been afforded.”

In his argument to the court, Kelly noted that the common law right of access, upon which he relied heavily, allows all Pennsylvanians the right to inspect the documents of the legislature. He said the common law access offers citizens a “general right” to such documents.

The Commonwealth Court ruling disagreed, noting that there was no common law right of access. Hodgson said that any common law access was essentially overwritten when Pennsylvania adopted the Right to Know Act. That act exempts legislators from having to release public records such as phone bills.

Kelly, however, persisted in his belief that the common law right was not merged into the Right to Know Act.

“People have a fundamental right to request and receive documents from legislators. … We have a common law and constitutional right to approach our government and get those documents,” said Kelly.

Cappy asked Kelly where the line of access gets drawn in such an argument. What, asked Cappy, constitutes a public record.

Kelly said that anything in which taxpayer funds are utilized should be considered public domain and be open for inspection. In this instance, Kelly said both the bill and the itemized list of calls should be open to examination.

“How is that public record?” asked Cappy.

“It’s related to how the money was spent,” said Kelly.

Referring to a case in which the state Supreme Court allowed access to sealed court records, Kelly told the justices, “We’d like the legislature to stand up to the plate like you did.”

Hodgson, however, argued that the case Kelly referred to had no place in civil proceedings. Because the case dealt with criminal records that are generally released anyway and not documents that are not released, like the phone records, Hodgson said the cases were vastly different.

“These records were made available to four news organizations, including (the Herald-Standard) … but the Herald-Standard chose not to accept that offer,” said Hodgson.

The court will now discuss and rule on the appeal. That ruling, said Kelly, could take up to a year.

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