Ferens record position opposed
The explanation by Fayette County solicitor Joseph E. Ferens Jr. that the rules change regarding public records when a lawsuit is involved doesn’t hold water, according to an attorney with the Pennsylvania Newspaper Association. Teri Henning, general counsel for the Pennsylvania Newspaper Association, said to her knowledge there is no legal standing behind Ferens’ denial of a public record to Uniontown resident Michael Cavanagh.
Cavanagh has been requesting a copy of the county’s liability insurance policy for seven months.
He renewed his quest for the public record publicly at last month’s Fayette County commissioners meeting. At that meeting, Ferens directed Cavanagh to have Cavanagh’s attorney seek the document, saying that Cavanagh has sued the county.
Cavanagh, who was convicted of auto insurance fraud, was allegedly assaulted and apprehended by Fayette County court employees while in West Virginia three years ago after his appeal was exhausted.
He has sued the county and its employees in federal court, claiming that his civil rights were violated when he was picked up in West Virginia to begin serving a prison sentence.
Henning said what Cavanagh is requesting would likely fall under the realm of public information as per the Pennsylvania Right to Know Law.
“It would be public if it’s a contract between the county and a third party,” Henning said. “I am not aware of any law or rule that would make the document not public, if in fact the reverse is true,” she said adding that some records that are not public become open after a lawsuit is filed.
“If a record is public, it’s public the motivation and reasons behind the request are irrelevant,” Henning said.
Ferens, who did not return calls seeking comment, previously said he did not have to grant Cavanagh’s request for the record because of the lawsuit.
In his most recent written request for the information dated Sept. 27, Cavanagh said he remains “totally offended by solicitor Ferens indefensible assertions that I can not have the information that I have requested seven plus months ago. Mr. Ferens has not written any legal opinion stating his positions as Mrs. (Angela M.) Zimmerlink, one of his bosses, has asked,” Cavanagh wrote.
During last month’s meeting, Chairwoman Zimmerlink was the only commissioner who responded to Cavanagh, saying she wanted to give Cavanagh the information, but was hesitant because of Ferens objections.
Zimmerlink said she has written two letters to Ferens asking for legal documentation to back up his comments that the rules have changed.
“I told Michael publicly my opinion is that if it is a public record he has a right to receive the document. The only reason I as one of three county commissioners hasn’t handed it over is I have a county solicitor that is telling me the rules have changed,” Zimmerlink said. “I have publicly asked Joe Ferens on more than one occasion to tell me what rules and give me any legal opinion in writing and to cite his legal reasons.”
Zimmerlink said she is not a lawyer but she has looked at the Open Records law and didn’t see any case law to support Ferens’ position but she can’t jeopardize either the county’s insurance coverage or defense on the lawsuit by turning over the documents.
“If I turn over the documentation, I have legal representation and coverage issues. Even though I disagree with Joe Ferens I can’t give it to (Cavanagh),” Zimmerlink said.
At last month’s meeting, Ferens accused Cavanagh of simply seeking publicity in asking for the document. Zimmerlink said she didn’t appreciate a comment about Cavanagh’s motives being made by a county solicitor.
“He’s a member of the public and entitled to public information,” she said of Cavanagh. “If the rules have changed I want Joe Ferens to tell me what rules have changed.”
Commissioners Joseph A. Hardy III and Vincent A. Vicites did not comment following Cavanagh’s remarks, and Vicites did not return calls seeking comment.