Received 5/23/2017 2:35:50 PM Commonwealth Court of Pennsylvania Filed 5/23/2017 2:35:00 PM Commonwealth Court 216 MD 2017 IN THE COMMONWEALTH COURT OF PENNSYLVANIA -----------------------------------------------------Austin Nolen and Philly Declaration, LLC, Petitioners, First Judicial District of Pennsylvania; Office of Judicial Records, First Judicial District of Pennsylvania; Eric Feder, Deputy Court Administrator, First Judicial District of Pennsylvania; Daniel Rendine, Jury Selection Commissioner, First Judicial District of Pennsylvania, Respondents. ------------------------------------------------------ Docket No. _______________ PETITION FOR REVIEW IN THE NATURE OF MANDAMUS AND FOR A DECLARATORY JUDGMENT I. SUMMARY OF THE LAWSUIT 1. Petitioners Austin Nolen and Philly Declaration, LLC seek to compel Respondents to make available official records that the public by law has a right to inspect, and that Respondents, as a matter of both policy and practice, are not making available to the public. 2. Dating back to December 2014, Petitioners have requested several categories of records from the First Judicial District of Pennsylvania, including, as relevant here, arrest reports, search warrant affidavits, and a list of jurors who had been disqualified for jury service in 2014, along with reasons for disqualification. 3. Each of these categories of records is subject to a right of public access. 4. Notwithstanding Respondents’ legal duty to make these records available for public inspection, none of the requested records has been made available or disclosed in response to Petitioners’ requests. 5. This refusal to make such records available to Petitioners appears to reflect a general practice within the First Judicial District of Pennsylvania whereby these particular categories of records are not kept and/or made available for public inspection in the manner required by law. 6. Petitioners seek a writ of mandamus requiring the First Judicial District to release the records that Petitioners have requested. 7. Petitioners also seek a writ of mandamus requiring the First Judicial District’s Office of Judicial Records to release the arrest reports and search warrant affidavit records that Petitioners have requested. 2 8. Petitioners also seek a writ of mandamus requiring the First Judicial District’s Deputy Court Administrator Eric Feder to perform his nondiscretionary duty to release and make available arrest reports and search warrant affidavits. 9. Petitioners also seek a writ of mandamus requiring the First Judicial District’s Jury Selection Commissioner Daniel Rendine to perform his nondiscretionary duty to release and make available for public inspection the requested list of jurors disqualified in 2014, along with reasons for their disqualification. 10. In addition, Petitioners seek a declaration that the practices and policies within the First Judicial District of Pennsylvania regarding public access to these categories of records are inconsistent with the public’s rights of access. II. JURISDICTION 11. The Commonwealth Court has original jurisdiction over this Petition. See 42 Pa. C.S. § 761(a). III. PARTIES 12. Petitioner Austin Nolen is a journalist who reports for Philly Declaration, LLC. 13. Petitioner Philly Declaration, LLC (“The Declaration”) is the publisher of an online news magazine based in Philadelphia. See 3 https://phillydeclaration.org. Its principal focus is on reporting about city, state and federal government activities through means of public records requests. 14. Respondent First Judicial District is a judicial district that includes the Court of Common Pleas and the Municipal Court of Philadelphia County. 15. Respondent Office of Judicial Records, First Judicial District is the office within the First Judicial District that keeps records, issues process, enters judgment, and certifies the record. 16. Respondent Eric Feder is the Deputy Court Administrator for the First Judicial District, and has custody and control over the arrest reports and search warrant affidavits at issue. 17. Respondent Daniel Rendine is the Jury Selection Commissioner for the First Judicial District, and has custody and control over the jury records at issue. IV. STATEMENT OF LAW AND FACTS A. Arrest Reports 18. Arrest reports and other documents used as part of probable cause and bail determinations are judicial records subject to a common law right of public access. See Commonwealth v. Fenstermaker, 515 Pa. 501, 508, 530 A.2d 414, 418 (1987). These records are presumptively open to the public. 4 19. On information and belief, arrest reports and other documents relied upon by Magistrates that are used as part of probable cause and bail determinations are made available to the public in courts throughout Pennsylvania, except in the First Judicial District. 20. On information and belief, bail determinations in Philadelphia are made by Arraignment Court Magistrates in a preliminary arraignment proceeding. 21. On information and belief, the Office of Judicial Records has access through an electronic system to the arrest reports and other documents used by Arraignment Court Magistrates in the First Judicial District to make bail determinations. 22. On information and belief, notwithstanding the fact that the Office of Judicial Records has access to arrest reports and other documents relied upon to make bail determinations, it does not provide the public with access to these documents. 23. On December 28, 2014, Nolen submitted a request via email to the Public Access Unit of the First Judicial District, seeking the arrest report that Arraignment Court Magistrate Jane Rice relied upon to find probable cause to detain Hannah Weaver on August 25, 2014. (A true and correct copy of that request is attached hereto as Exhibit A.) 24. Nolen received no response to this request. 5 25. On January 8, 2015, Nolen sent an email to Deputy Court Administrator for Procurement Marc Flood following up on the request. That email explained the legal basis for Petitioners’ request and invited Flood to contact Nolen if there were any questions about the request. (A true and correct copy of that email is contained in Exhibit B, attached hereto.) 26. On January 9, 2015, Nolen received a letter from Flood directing him—again—to contact the Office of Judicial Records as well as the Philadelphia Police Department’s Right-to-Know office. (A true and correct copy of that letter is attached hereto as Exhibit C.1) 27. On January 14, 2015, Nolen left a telephone message with Flood, requesting to speak with Flood about the request. 28. On January 15, 2015, Nolen emailed Flood again, requesting to speak about the request. (A true and correct copy of that email is contained in Exhibit B, attached hereto.) 29. On February 2, 2015, the Pennsylvania Freedom of Information Coalition sent to Flood, Gaillard, and Deputy Court Administrator for Legal 1 Exhibit C contains handwritten notes made by Nolen. It is the only version of the document in Nolen’s possession at this time. 6 Services Dominic Rossi a letter of concern regarding Nolen’s request. (A true and correct copy of that letter is attached hereto as Exhibit D. 2) 30. On April 10, 2017, Nolen submitted via email a Public Access Request for the Philadelphia Police Department arrest reports that Magistrates relied upon to find probable cause and set bail in four cases. Those cases were Commonwealth v. Juan Ortiz, MC-51-CR-0009221-2017, DCN 2017-24-030410, Commonwealth v. Joseph Green, MC-51-CR-0036248-2016, DCN 2016-14102897, Commonwealth v. Clay Ali Pizarro, MC-51-CR-0025160-2016, DCN 2015-24-086124, and Commonwealth v. Lisa Dougherty, MC-51-CR-00194462016, DCN 2016-065019. (A true and correct copy of that request is attached hereto as Exhibit E.) 31. Nolen has received no response to the requests and has never received the requested records. B. Search Warrant Affidavits 32. Search warrant affidavits are judicial documents to which the public has a right of access under the United States Constitution, Pennsylvania common law, and Pennsylvania rules of criminal procedure. See PG Publ’g Co. v. Commonwealth, 532 Pa. 1, 6, 614 A.2d 1106, 1108 (1992); PA. R. CRIM. P. 209-12. 2 Exhibit D contains a redaction that Nolen made on the document for the purpose of displaying it on the Internet. It is the only version of the document in Nolen’s possession at this time. 7 33. On information and belief, in the First Judicial District, magistrate judges in Philadelphia decide whether to issue search warrants by considering search warrant affidavits submitted by police. 34. The Pennsylvania Rules of Criminal Procedure require the magistrate judge to return a copy of the supporting search warrant affidavits to the clerk of the court. See PA. R. CRIM. P. 210. 35. On information and belief, the clerk of the court in the First Judicial District is the Office of Judicial Records. 36. On information and belief, after magistrate judges in the First Judicial District decide whether to issue a search warrant, they do not transmit to the Office of Judicial Records a copy of the affidavit relied upon to make the decision. 37. Because the search warrant affidavits are not transmitted to the Office of Judicial Records, Petitioners have been unable to access them unless they have been made available by some other means. Although the police department does file the executed search warrants and their affidavits with the court in some cases, it does not do so in all cases. 38. On information and belief, the Narcotics Field Unit of the Philadelphia Police Department only files with the court the cover sheet for executed search warrants, but not the supporting affidavits. Therefore, Petitioners have been unable to access affidavits made by officers in this unit. 8 39. On February 3, 2015, Nolen submitted via email a request for the affidavit of probable cause relied upon by Arraignment Court Magistrate Jane Rice in deciding to issue search warrant #185585 on January 1, 2015. (A true and correct copy of that request is attached hereto as Exhibit F.) 40. On February 13, 2015, Rossi sent Nolen an email acknowledging receipt of the request. (A true and correct copy of that email is attached hereto as Exhibit G.) 41. Nolen has received no response to the requests and has never received the requested records. C. Jury Records 42. Pennsylvania law requires that “[t]he jury selection commission shall create and maintain a list of names of all prospective jurors who have been disqualified and the reasons for their disqualification. The list shall be open for public inspection.” 42. PA. C.S.A. § 4523(a). 43. Nolen made a request for jury records on July 1, 2015. The request sought a list of prospective jurors who have been disqualified from jury service in 2014, and the reasons for disqualification. (A true and correct copy of that request is contained in Exhibit H, attached hereto.) The request also sought old and new versions of civil jury, criminal jury, and grand jury questionnaire/summons forms, but Nolen is no longer interested in pursuing those documents. 9 44. On July 6, 2015, Rendine contacted Nolen by email, stating that the request had been forwarded to the legal counsel of the court. (A true and correct copy of that email is contained in Exhibit H, attached hereto.) 45. Nolen heard nothing further from Rendine until June 23, 2016, when Rendine orally informed him that he had forwarded the request to the court counsel. Rendine stated he did not know why the request had not been reviewed. 46. Nolen resubmitted the request that same day. (A true and correct copy of that request is contained in Exhibit I, attached hereto.) 47. On June 29, 2016, Rendine informed Nolen via email that the resubmitted request was being reviewed and that the court would be in touch “within a reasonable amount of time.” (A true and correct copy of that email is contained in Exhibit I, attached hereto.) 48. On December 19, 2016, Rendine told Nolen orally that he had sent the request to the legal counsel of the court. 49. Nolen has received no response to the requests and has never received the requested records. D. Letters to Dominic Rossi, Judge Woods-Skipper, and Judge Neifield 50. On February 23, 2017, Petitioners, through counsel, wrote a letter concerning the events described above to Rossi, with copies to Hon. Sheila Woods-Skipper, President Judge, Court of Common Pleas of Philadelphia, and 10 Hon. Marsha H. Neifield, President Judge, Philadelphia Municipal Court. Petitioners received no response. (A true and correct copy of that letter is attached hereto as Exhibit J.) 51. On May 4, 2017, Petitioners, through counsel, wrote another letter to Rossi, Judge Woods Skipper, Judge Neifield, Rendine, and Feder, requesting information as to why Nolen’s requests have not been answered. (A true and correct copy of that letter is attached hereto as Exhibit K). 52. Nolen has received no further response or information regarding the various requests for records described above and has never received the requested records. COUNT I Violation of Mandatory Duties of 42 Pa. C.S.A. § 4523(a) 53. Petitioners hereby incorporate and adopt each and every allegation set forth in Paragraphs 1 through 52 of the Petition. 54. Respondents Rendine and the First Judicial District have failed to make the disqualified juror list available for inspection in violation of a mandatory duty under 42 Pa. C.S.A. § 4523(a). Respondent Rendine’s conduct violates Petitioners’ rights as members of the public and as journalists. 11 55. Petitioners will be unable to vindicate their right to inspect these records without an order from this Court directing Respondents to make the records available for public inspection. COUNT II Violation of Common Law Right of Access to Judicial Records 56. Petitioners hereby incorporate and adopt each and every allegation set forth in Paragraphs 1 through 55 of the Petition. 57. Respondents Feder, the Office of Judicial Records, and the First Judicial District have failed to make arrest reports and search warrant affidavits available for inspection in the absence of any particularized finding by a court. This conduct violates Petitioners’ rights to inspect records subject to the common law right of access. 58. Petitioners will be unable to vindicate their right to the documents without an order from this Court that Respondents must release the documents to them. PRAYER FOR RELIEF WHEREFORE, Petitioners respectfully request that this Honorable Court enter judgment in their favor and against Respondents, and: 12 1. By means of an order in the nature of a writ of mandamus, direct Respondents to immediately provide Petitioners the records they have requested; 2. Declare that Respondents First Judicial District of Pennsylvania; Office of Judicial Records, First Judicial District; and Feder are violating the public’s common law right of access by failing to act in accordance with their non-discretionary duty to make arrest reports available for public inspection; 3. Declare that Respondents First Judicial District of Pennsylvania; Office of Judicial Records, First Judicial District; and Feder are violating the public’s First Amendment and common law rights of access, as well as Pennsylvania Rules of Criminal Procedure 209 through 212, by failing to act in accordance with their nondiscretionary duties to make search warrant affidavits available for public inspection; and 4. Declare that Respondents First Judicial District of Pennsylvania and Rendine are violating 42 Pa. C.S.A. § 4523(a) by failing to act in accordance with their non-discretionary duty to make jury records available for public inspection. 13 Dated: May 23, 2017 Respectfully submitted, LEVINE SULLIVAN KOCH & SCHULZ, LLP By: /s/Michael Berry Michael Berry (No. 86351) Paul Safier (No. 209154) 1760 Market Street, Suite 1001 Philadelphia, PA 19103 Tel: (215) 988-9778 Fax: (215) 988-9750 mberry@lskslaw.com psafier@lskslaw.com Hannah Bloch-Wehba (Mot. for Pro Hac Vice Forthcoming) MEDIA FREEDOM & INFORMATION ACCESS CLINIC Abrams Institute for Freedom of Expression Yale Law School P.O. Box 208215 New Haven, CT 06520 t: (203) 432-9387 hannah.bloch-wehba@ylsclinics.org 14 VERIFICATION I, Austin Nolen, Managing Editor of Philly Declaration, LLC, verify that the facts set forth in the foregoing Petition for Review are true and correct to the best of my knowledge, information, and belief. This veri?cation is made subject to the penalties of 18 Pa. Cons. Stat. 4904 relating to unsworn falsi?cations to authorities. 5L Dated: May?fmn J1 in Austin NolenK CERTIFICATE OF SERVICE I, Michael Berry, hereby certify that on this 23rd day of May, 2017, I caused true and correct copies of the foregoing to be served on Respondents via certified mail as follows: Eric Feder Office of Judicial Records First Judicial District of Pennsylvania Room 284, City Hall Philadelphia, PA 19107 Daniel Rendine Jury Selection Commission First Judicial District of Pennsylvania Room 204, Criminal Justice Center Philadelphia, PA 19107 Office of Judicial Records First Judicial District of Pennsylvania Room 284, City Hall Philadelphia, PA 19107 First Judicial District of Pennsylvania c/o Joseph Evers Room 236, City Hall Philadelphia, PA 19107 Dated: May 23, 2017 /s/ Michael Berry Michael Berry