(This article first appeared in Broad + Liberty)
Editor’s note: The author of this article, Todd Shepherd, is not a neutral observer in the events described below. As a journalist with Broad + Liberty, he was the requester and lead plaintiff in the two Right-to-Know Law cases discussed in this story.
Over the last two months, Broad + Liberty has secured two important court rulings in its pursuit of documents related to the 2023 Mike Vereb scandal — a scandal that received additional scrutiny from national media as Gov. Josh Shapiro was one of two finalists to become the vice presidential running mate of Democratic nominee Kamala Harris in the summer of 2024.
The pair of rulings weren’t entirely in the outlet’s favor, but the portions that would be considered wins could end up delivering more transparency to reporters as well as members of the public who avail themselves of the commonwealth’s Right to Know Law.
In March of 2023, a young female deputy in the Office of Legislative Affairs abruptly resigned just one month into the job. She later filed complaints against Vereb, Shapiro’s secretary of the Office of Legislative Affairs. Vereb, a Montgomery County Republican, had held the same position with Shapiro at the Attorney General’s office as well.
In an earlier part of the court battle, Broad + Liberty forced the concession from the governor’s office that it had deleted the email account of Vereb’s female accuser. Although the governor has personally said his office follows all records-retention guidelines, Shapiro’s office has still never disclosed when that email account was deleted.
Although the deputy’s complaint was informally lodged in March and then more formally in late May or early June, Vereb didn’t resign until late September of that year.
This reporter has filed over twenty Right to Know requests combined at the governor’s office and the Office of Administration — essentially a kind of business- and HR-support office for the governor’s main office.
Last year, Broad + Liberty elevated two of those cases to Commonwealth Court.
In the first ruling from May, the RTK at issue sought emails from Vereb’s account for a one-month period that included the week the deputy quit. The request did not specify a subject matter or specific keywords.
That last aspect is important because courts have ruled that requesters who seek emails generally need to name the government activity they wish to examine. They do not have to provide this, however, if their timeframe is reasonably short — usually interpreted as a month or less.
The governor’s office compared the request to one in which a court “emphasized the fact that the request included the Acting Secretary of Health, as well as some of the most senior members of the Department of Health, and that the request would inevitably involve larger quantities of confidential and sensitive information and deliberation than a request of a similar scope” aimed at a lower ranking official.
Commonwealth Court Judge Michael Wojcik , however, wasn’t inclined to let this argument stand.
“If nothing else, we must remain vigilant to ensure that the objectives of the RTK Law are met. Access to information concerning the activities of the government does not hinge on the identity of the individual from whom records are sought,” Wojcik wrote.
“The Governor and other individuals in the Office cannot avoid a RTK Law request simply because they are high-ranking officials who transact large amounts of business on behalf of the citizens of the Commonwealth. Simply stated, the Governor and the employees in the Office stand in the same shoes as any other government official who is the subject of a RTK Law request.”
In the June ruling, the judge ruled that Shapiro’s office had improperly invoked the “deliberative process privilege” when trying to shield some emails from disclosure.
The “deliberative process privilege” shields records that are predecisional and deliberative, as a way to “encourage open, frank discussions on matters of policy,” according to the Reporter’s Committee for Freedom of the Press.
But in the Broad + Liberty request, Judge Wojcik analyzed many of the emails and determined the governor’s office had been overly generous in its assertion of the privilege.
Speaking with regard to a named set of emails, Wojcik said, “Our review of the documents reveals that they are related to the processing of travel reimbursements and are not reflective of a particularized deliberative process. In this regard, the documents do not reflect that the Office was carrying out deliberations of law or policymaking.”
The emails Wojcik referenced, won’t necessarily be turned over immediately, however, if at all. The judge ordered the Office of Open Records (OOR) to reexamine the emails in light of the other exemptions the governor’s office also applied to the same set of documents.
Still, both rulings have already impacted other Right to Know appeals. As a consequence of the most recent ruling, the OOR has now interrupted more than one RTK appeal this reporter had underway in order to say it would be reassessing “privilege” claims in light of the judge’s decision.
Manuel Bonder, spokesman for the Shapiro administration, called the idea that the rulings were “wins” for Broad + Liberty a “bad faith interpretation” and “another baseless attack that is completely divorced from the reality of the Court’s decision.”
“Notably, out of dozens of withheld records, the court only identified 3 that were not exempt. The court’s finding that you were entitled to only three records out of the voluminous entries only further supports the office’s steadfast dedication to transparency and propriety,” Bonder said.
Bonder was also keen to point out that the court had dismissed an argument by Broad + Liberty in which this outlet argued that the governor’s office could not invoke an exemption for documents related to an official investigation — even if the investigation is noncriminal. Broad + Liberty argued that the investigation, to the extent there was one, was conducted by the Pennsylvania Human Relations Commission, and only after the accuser filed an official complaint. As a result, the governor’s office could not be shielded, the attorneys argued. Wojcik dismissed that argument and called it “tortured reasoning.”
Melissa Melewsky, media-law counsel for the Pennsylvania NewsMedia Association, says the court rulings underscore a crucial point that too often gets overlooked in Pennsylvania’s public records battles: agencies bear the burden of proving why a record should be withheld — and courts are increasingly insisting that burden must be met.
“Agencies cannot rely on boilerplate assertions or conclusory affidavits to support denials; detailed evidence is required,” Melewsky said. “There are almost no evidentiary hearings in the RTKL context, and that puts the public at a distinct disadvantage in the appeal process and requires agency affidavits supporting denial to be robust and subject to detailed review by the OOR and courts. Anything less allows agencies to hide public information without justification.”
“The holdings illustrate these principles in action and serve as a reminder to agencies, the OOR, courts, and requesters that an affidavit is not the final word on access, and anything less than detailed, meaningful evidence will not meet the burden of proof,” Melewsky concluded.
Melewsky’s concerns were identical to the subject of a recent house editorial from the Pittsburgh Post-Gazette, titled, “Pennsylvania’s Right to Know Law is too easily circumvented by the government.”
“Government officials can deny RTK requests simply by signing an affidavit claiming the documents aren’t subject to the law [because of privilege] — and requesters, whether media or private citizens, can do almost nothing to change that,” the board continued.
“[G]overnment officials can make a sworn statement affirming that documents meet one of the dozens of exceptions to public records in the RTKL, or that the documents don’t exist at all, and that’s the end of it,” the paper went on to say. “Requesters can’t easily produce evidence of bad faith because they have no right to a hearing — this is implied in the RTKL itself, as interpreted by the courts — and therefore no forum in which they can present contrary evidence.”
Broad + Liberty will likely win access to some of the documents Shapiro’s office labeled as “privileged” simply because it took the matter to court — something few requesters have the means to do.