Judge set to rule in Herald-Standard, DOC case
A Commonwealth Court judge should soon have an answer regarding an open records dispute between the Herald-Standard and the state Department of Corrections (DOC), after both sides presented arguments via teleconference on Friday.
Represented by attorneys Charles Kelly and Michael Joyce, the Herald-Standard argued to Senior Judge J. Wesley Oler Jr. that there’s no question the records of illnesses contracted by inmates at SCI-Fayette sought by way of a Right to Know Law (RTKL) request should be made available by the DOC immediately.
“What’s being requested are records related to a significant public dispute which deals with the health of inmates who were willing to identify themselves,” Kelly said, pointing to the report that initially sparked the newspaper’s interest in the records, titled “No Escape: Exposure to Toxic Coal Waste at State Correctional Institution Fayette,” published by the Abolitionist Law Center and the Human Rights Coalition in September 2014.
“These inmates are saying, ‘We are sick and we are afraid we’re dying because we’re at the doorstep of one of the most lethal, toxic fly ash dumps in the state of Pennsylvania,'” Kelly argued.
After that report was published, the state Department of Health came out with a report titled “Review of Cancer Burden at the PA State Correctional Institute-Fayette,” which contradicted the earlier report’s findings, claiming the cancer rate among inmates was lower than the state cancer rate.
Kelly urged the judge to grant the newspaper’s petition for enforcement of the Office of Open Records’ (OOR) final determination notice, which ordered the DOC to turn over the responsive documents in December of last year.
“In the name of speech, and the advancement of speech for a public purpose,” Kelly argued, the petition should be granted on the facts pleaded so far.
The newspaper’s request, as stated and recognized by the OOR, is for information about reported contracted illnesses, he said, particularly respiratory ailments and various types of cancer, and the number of inmates or staff with those illnesses reported at SCI-Fayette since its opening.
Maria Macus, counsel for the DOC, argued that the contrary to Kelly’s assertion that the department has been acting in bad faith, there was simply a misunderstanding about the nature of the newspaper’s request.
She said the department, of course, has medical records for inmates in its possession. She contended the DOC interpreted the Herald-Standard’s request as a request for data, and that there is no database from which to pull the data requested.
“Data from gleaning (from medical records) would be creation of a new record that doesn’t exist,” Macus said, which she contended the DOC isn’t required to do.
Further, Macus claimed that if the DOC had interpreted the Herald-Standard’s request as a request for access to medical records, it would have raised the medical record exemption defense.
“The DOC did raise the medical exemption argument,” Kelly countered, noting that the OOR dealt with that argument when the newspaper initially appealed the department’s response to the RTKL request.
Kelly directed Oler’s attention to several instances in the history of the case where the DOC admitted that the records the newspaper asked for do exist. Chase Defelice, an attorney who previously represented the DOC, specifically indicated in court filings that if the types of records the newspaper sought existed, the newspaper would have a clear right to access them.
Kelly also pointed to a press release issued by the DOC on Dec. 31, 2014, which not only stated that the department has a database of inmate health conditions, but that the DOC appointed a medical review team to identify irregularities.
The various positions the DOC has taken regarding the existence and availability of the records, before and after the OOR’s final determination, show the department has been acting in bad faith, Kelly claimed.
“They have the records, they did not file an appeal (to the OOR’s final determination), and we have had to expend time and money to get the records turned over,” Kelly told the court.
“And we think that’s in bad faith.”
Oler commended both sides for their arguments, and said he expected to reach a decision in the next week or so.