Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, October 27, 2006

Pennsylvania Supreme Court Vacates Lower Court Order Directing Newspaper To Surrender Computer Hard Drives to Attorney General's Office

The Pennsylvania Supreme Court has vacated a lower court's order to Lancaster Newspapers to surrender some computer hardware, including two computer hard discs, pursuant to a grand jury subpoena. The newspaper "contended...that the subpoena was overbroad because it required production of information that was not relevant to the grand jury investigation, and further, violated its constitutional and statutory rights, since it required production of work product materials protected by the First Amendment Privacy Protect Act, 42 U.S.C. [sec.] 2000aa-2000aa-12, and newspaper source information protected by the First Amendment of the United States Constitution, as well as the Pennsylvania Shield Law, 42 Pa.C.S. [sec.] 5942. The supervising judge denied the motion to quash; however, he directed that the examination of the newspaper hard drives...would be closely limited to permit only the review of historical information concerning internet access and admonished that no document files or other content unrelated to such history were to be viewed or accessed...." Lancaster Newspaper requested a stay pending appeal; the judge issued an order granting the stay, but Lancaster was forced to surrender the computer hard drives. The newspaper complied. Lancaster appealed the judge's order. The grand jury issued additional subpoenas. Lancaster and several employees filed motions to quash, alleging "that the subject matter was not appropriate to a statewide investigating grand jury, because the investigation did not involve organized crime or public corruption, did not implicate conduct within more than one county, and did not require the specialized resources of a statewide body....[T]he newspaper also sought access to document related to the administration of the grand jury, including the sealed notice submitting the underlying investigation...." The supervising judge granted Lancaster Newspaper's petition for access....

"During a subsequent telephone conference with the supervising judge, the Attorney General's office advised that it would not produce Notice 12 [the sealed notice], but rather, would seek appellate review....The next day, Lancaster Newspapers...filed the present submission styled as an emergency application for review in this Court's original appellate jurisdiction....The Attorney General filed a petition for review....This Court issued orders staying the effectiveness of the supervising judge's contempt order [to Lancaster] and requirement of disclosure concerning the content of Notice 12, pending our expedited review. We also granted the request to seal designated filings."

The Court agreed with Lancaster on the merits. "[U]ltimately we agree with Lancaster Newspapers that measures were available to obtain the information subject to the investigation short of outright surrender of the hard drives to the Commonwealth. In this regard, the analogy made by the newspaper between the computer hard drives and entire media file cabinets appears apt....We find that the supervising judge's approach is not sufficient to address the potential chilling effect referenced by the newspapers, as the unavoidable effect is that the essential "filing cabinets" of the newspapers are transferred to the custody and control of the executive branch of government. While it may be that, given the technologies involved, the method crafted by the supervising judge is the most expedient manner of investigation, a careful balancing of the respective interests involved leads us to the conclusion that this particular method of disclosure is unduly intrusive in the circumstances presented. Notably, part of the reason that the Fourth Amendment is of limited application in the setting of grand jury subpoenas is that the appearance at grand jury proceedings is not regarded as a search or seizure....The extraction by the executive branch of entire "filing cabinets" from a witness and/or subject of investigation, however, tests the limits of credulity in the attempt to maintain the understanding that no search or seizure is involved."

With regard to Lancaster's request for disclosure of the contents of Notice 12, the Court held that its decision in a prior case (In re Investigating Grand Jury of Phildelphia County (Appeal of Washington)), 490 Pa.31(1980) supported Lancaster's position. "We find that the Appeal of Washington decision provides adequate support for Lancaster Newspapers' position....Certainly, a witness or subject will be hampered in the ability to challenge a notice of submission if he lacks any access to the document. Therefore, at least when, in the sound judgment of the supervising, judge (subject to this Court's appellate reviev...), the policy concerns raised by the Attorney General are not implicated in the particular circumstances involved, we find that confidential disclosure is available."

Read the entire opinion here.

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