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Home My WebLink About09-58326" -- F-x?' NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO THE TELEPHONE OR THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 LEVINE SULLIVAN KOCH & SCHULZ, L.L.P Gayle C. Sproul, ID No. 38833 Michael Berry, ID No. 86351 2112 Walnut Street, Third Floor Philadelphia, PA 19103 Tel: (215) 988-9782 Fax: (215) 988-9750 NOT AN ARBITRATION CASE Attorneys for Plaintiffs, Hearst Television, Inc., d/b/a WGAL-TV, and Daniel O'Donnell COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION IN THE MATTER OF HEARST TELEVISION, INC., d/b/a WGAL-TV and DANIEL O'DONNELL, Plaintiffs, -against- MICHAEL L. NORRIS, in his official capacity as CORONER OF CUMBERLAND COUNTY, and THE PENNYLVANIA OFFICE OF OPEN RECORDS, Defendants. COMPLAINT P 3 ? l? e? NO. 0 q, t NOW COMES HEARST TELEVISION, INC., d/b/a WGAL-TV, and DANIEL O'DONNELL ("Plaintiffs" or "WGAL-TV"), by and through their undersigned counsel, Levine Sullivan Koch & Schutz, L.L.P., and hereby complain of MICHAEL L. NORRIS, in his official capacity of CORONER OF CUMBERLAND COUNTY, and THE PENNSYLVANIA OFFICE OF OPEN RECORDS ("Defendants") as follows: 1. This is a special proceeding brought against the Defendants pursuant to the Pennsylvania Right-to-Know Law 65 Pa. C.S.§ 67.101 et seq. (the "Right-to-Know Law" or "RTKL" ). 2. This action arises out of Defendant Norris's denial of a request to provide certain information to Plaintiffs as required by the RTKL and the determinations of Defendant Pennsylvania Office of Open Records denying Plaintiffs' appeal from that denial. PARTIES, JURISDICTION AND VENUE 3. Plaintiff Hearst Television, Inc., d/b/a WGAL-TV, is a Delaware corporation. WGAL-TV is a television broadcast station, and has its principal place of business at 1300 Columbia Avenue, Lancaster, Pennsylvania 17604. WGAL-TV is a leader in Lancaster, York and Harrisburg, Pennsylvania news coverage. 4. Plaintiff Daniel O'Donnell ("O'Donnell") is a professional journalist who is employed as the News Director for WGAL-TV. Ms. Rebecca Hockley, who requested the records at issue on behalf of WGAL-TV, at all times acted at the direction and supervision of O'Donnell. 5. WGAL-TV and O'Donnell are collectively referred to as WGAL-TV or Plaintiffs. 6. Defendant Michael L. Norris, the Coroner of Cumberland County (the "County Coroner"), is sued in his official capacity as the Coroner of Cumberland County, with his place of business located at 6375 Basehore Road, Suite 1, Mechanicsburg, Pennsylvania 17050. 2 7. The Pennsylvania Office of Open Records is named as a Defendant herein because it rendered the Final Determination at issue in this matter. g. The County Coroner and The Pennsylvania Office of Open Records are collectively referred to as Defendants. 9. The actions of Defendants complained of herein are final in nature and cannot be reviewed adequately by another court, entity or officer. As set forth below, Plaintiffs filed a RTKL request with the County Coroner, requesting access to the "manner of death for Thomas Rainey." The request was denied in whole. The subsequent administrative appeal to the Office of Open Records was likewise denied. The Coroner's Office is subject to the RTKL, 65 Pa. C.S. § 67.102, and refused to comply with Plaintiffs' RTKL Request. 10. Because Plaintiffs have exhausted their administrative remedies, this Court has jurisdiction over this matter pursuant to section 1302(a) of the RTKL. 65 Pa. C.S. § 67.1302 11. Venue is proper in this judicial district pursuant to section 1302(a) of the RTKL because it is where the principal office of the County Coroner is located. F_ Plaintiffs' Right-to-Know Law Request 12. In early 2009, in the course of WGAL-TV's routine reporting, WGAL-TV sought to determine the manner of death of Thomas Rainey. 13. In furtherance of this research, on April 17, 2009, WGAL-TV Assignment Manager Rebecca Hockley, on behalf of WGAL-TV, sent a RTKL request (hereinafter, the "RTKL Request" or the "Request") to Ms. Joanna Burkhart, Cumberland County 3 Open Records Officer, requesting the "manner of death for Thomas Rainey from Mike Norris, Cumberland County Coroner." A true and correct copy of the April 17, 2009 Letter is attached hereto as Exhibit I. 14. In a letter dated April 23, 2009, Norris, in his official capacity as Coroner and the Open-records officer of the County Coroner, denied the RTKL Request. The letter provides that "[a]ny information this office may have regarding the manner of death for any person who died in 2009 is not public record and would not become public under current law until 30 days after the end of the year. Purdons Title 16 Section 1251." A true and correct copy of the April 23, 2009 Letter is attached hereto as Exhibit 2. 15. Plaintiffs appealed the denial of the Request on April 27, 2009 to the Pennsylvania Office of Open Records (hereinafter "Office of Open Records"). A true and correct copy of the April 27, 2009 Letter is attached hereto as Exhibit 3. 16. Rebecca Hockley, the employee who filed the RTKL Request and Appeal (Exhibits 1 and 3) on behalf of WGAL-TV in her capacity as Assignment Manager of WGAL-TV, is no longer employed by WGAL-TV. In filing Exhibits 1 and 3, Ms. Hockley was supervised by and acted at the direction of News Director Daniel O'Donnell. 17. On May 27, 2009, the office of Open Records issued a Final Determination in In the Matter of Rebecca Hockley v. Cumberland County Coroner (Docket No. AP 2009-0337), affirming the denial of the Request (hereinafter the "First OOR Determination"). In the First OOR Determination, the Office of Open Records erroneously interpreted the Request as seeking an autopsy report and did not appropriately consider or address 65 P.S. § 67.708(b)(20), under which the "name of the 4 deceased individual and the cause and manner of death" are expressly excluded from the exceptions to the RTKL. A true and correct copy of the May 27, 2009 First OOR Determination is attached hereto as Exhibit 4. Plaintiffs' Petition for Reconsideration 18. By letter dated June 24, 2009, WGAL-TV filed a Petition for Reconsideration with the office of Open Records, seeking reconsideration of the First OOR Determination, Docket No. AP 2009-0337. A true and correct copy of the June 24, 2009 Petition for Reconsideration is attached hereto as Exhibit 5. 19. By letter dated June 25, 2009, the office of Open Records granted WGAL-TV's Petition for Reconsideration, and indicated, inter alia, that it would issue a determination responsive to WGAL-TV's Petition no later than July 24, 2009. A true and correct copy of the June 25, 2009 Letter is attached hereto as Exhibit 6. 20. By letter dated July 10, 2009, the County Coroner opposed WGAL -TV's Petition for Reconsideration. A true and correct copy of the July 10, 2009 Opposition is attached hereto as Exhibit 7. 21. By letter dated July 23, 2009, the Office of Open Records re-issued its grant of WGAL-TV's Petition for Reconsideration. A true and correct copy of the July 23, 2009 Decision is attached hereto as Exhibit 8. 22. On July 24, 2009, the Office of Open Records mailed its Determination Upon Petition for Reconsideration in In the Matter of Rebecca Hockley v. Cumberland County Coroner (Docket No. AP 2009-0337) (the "Final OOR Determination"), affirming the First OOR Determination. A true and correct copy of the July 24, 2009 Final OOR Determination is attached hereto as Exhibit 9. 5 CAUSE OF ACTION 23. Plaintiffs hereby repeat and reallege paragraphs 1 through 22 as if fully set forth herein. 24. Plaintiffs commence this proceeding, which is in the nature of a Petition for Review, pursuant to the RTKL, 65 Pa. C.S.§ 67.1302(a). 25. Under the RTKL, all agency documents are presumed to be public records. 65 Pa. C.S. § 67.305(a). Documents may be withheld only if the agency satisfies its burden of proving that an exemption set forth in the RTKL applies to the requested records. Id. § 67.708(a). Such exemptions are to be construed narrowly. 26. No exemption to the RTKL applies to the information sought here. Therefore, disclosure of the information is required under RTKL. 27. No other law conflicts with the RTKL in this matter. 28. Defendants' denial has caused, and continues to cause, immediate and irreparable harm to the rights guaranteed to Plaintiffs and to the public at large under the RTKL and Article 1, Section 7 of the Pennsylvania Constitution. 29. The information and records requested are of significant interest to the general public, and Defendants lack a reasonable basis in law for withholding the records. 30. Plaintiffs have exhausted their administrative remedies and have not obtained the requested records. 31. Plaintiffs have no adequate remedy other than this proceeding, and no previous application for relief requested herein has been made other than as described above. 6 32. The exemptions, exclusions or defenses asserted in the final determination denying Plaintiffs' RTKL Request were not based on a reasonable interpretation of the law. WHEREFORE, Plaintiffs respectfully request this Court to grant judgment: (a) Vacating, overruling, and prohibiting the enforcement of the Final OOR Determination; (b) Directing the County Coroner to provide Plaintiffs with immediate access to the information and records specified in the RTKL Request; (c) Awarding Plaintiffs their costs, disbursements and attorneys' fees pursuant to the RTKL 65 Pa. C.S. § 67.1304; and (d) Awarding Plaintiffs such other and further relief as the Court deems just and proper. Dated: August 24, 2009 Respectfttty LEVINE S VAN CH & SCHULZ, L.L.P. Gayle C. S ul, I.D. No. 38833 Michael Berry, I.D. No. 86351 2112 Walnut Street, Third Floor Philadelphia, PA 19103 Tel: (215) 988-9778 Fax: (215) 988-9750 Attorneys for Plaintiffs Of Counsel: Jonathan R. Donnellan Kristina E. Findikyan HEARST CORPORATION 300 West 57th Street New York, New York 10019 (212) 649-2020 7 VERIFICATION I, Daniel O'Donnell, News Director of WGAL-TV, a Hearst Television, Inc. station, am authorized to make this verification on behalf of WGAL-TV and Hearst Television, Inc. I have read the foregoing Complaint and verify that the facts set forth therein are true and correct to the best of my knowledge, information and belief. This verification is made subject to the penalties of 18 Pa. Cons. Stat. § 4904 relating to unworn falsifications to authorities. Dated: 4G 1 Apii.1 L 7- 2009 Itebecca Hockley WGAIL-TV Nees S 1300 Colua:tibia Avenue Lancaster, VA 17604 Joamie; Burkli -t I Courthouse Squares Suite 200 Carlisle, PA 1701 N s, Burkba rt: Please conzad:er this an ollwii al w-ri.tlen request for inforna.ritioti 6•orn 11 C'. AL -TV. Oil April V!7_2009. «CXquested the uttatitier of death for'Iharnas Rainey from tke Norris, C: aatttlie.rlaa;il. Coartrty Corotier. I %%-as told by Mr. Non-is thin lie teas riot ruluia ed under tile; Open. Records L:1w.to provide t.hc mt+siner of'do tth. I understand ilia, cause and triamior of death constitute: `public records' puratiani to Runnsy l vaiii a's Righi-To-I turw Law ( 65 P.S. J R 061 of se.q.. ;as urrrende d), You may contact me id a.riv tine at the 11611 1arlzig phone Ilum er-reg,-Wding art -anncn)citts for the discluscrr'e :nf dais nif i-matiol.: 1fyou decide to muse this request. pleme provide me with a written stawnaenr of (lie 1-MS011S IbT cletai.al. ff YOU deraai: is limed oil :itatutc, regulation or cut.art ruliii- , Please rite that kvx or case, ine.iuding the• -tecifc section or sections in your written tespoxise. I look forward to the Cuii berhind COuttty COT019.er','? Office making, this inforimation a'tnilai7lc, tit Inc! in iirture retlrrests. RtspeGt lia t3}`- i ebccc.a Hockley ASST}zrti,leat Manager %V(3 A !:.. Ne.;?, ; K 5 -7 3 OFFICE OF THE CORONER t.'FI?f?Fl,ka. L.. 1`?toltf?IS ?«mlr.!»aa Rii:ttAR.h C. t?ii'•h4*.iti?'.JsF I..v.r..r+ pE?ers r s:cai+<>r+ri? C )RUNF.1;: tL't:.T?..?t!.:N '!. .?TGNSF:N Toov, C. Fc:-.i<vofiULtli CP: (•VT'? C:i:r!a t; f:R ?C HF.11/•P? cmair oePfrrx crnv?mit+i '?l+;^° 111wl.l,IN Ft. r•1r.Cnc.Ea so:_it? ITij4{ CUM.j3e-PLAN-D COUNTY 53"1' ErhSSvutaF F?ttic..`'um ! t?1?chi?l?ss:rntc, f'A a"7(33;r ??+?r.;?.??r????t3C•??tzi ?'.? ?i'7-?cr'F.i-t??r9 :?3 Aril 2009 l zbecua 110"-kley Wt,•1AI.,,` l V ! t'th1's 1300 Columbia Avcmte l,;rzxza,st.c,r, Pa 17604 11 s, I-l_e, .klev: This letter is itl rcjrlY to rt tecju.c .c for u'fttrnlcrtl4)n .tCT4i:trClCtl. rrr tree by'jhe Curnborlaild C°O,1.Lru Open Rccords Of 1 icor. To insert piper re-sponse in the t'm-Te please direct inquiri+ y for itr#cnmration from (lie Cut;rberla.tul C .they Coro. er's-Mice (o: AGENCY OPEN RECORDS OFFICER 'I'lle. Open Records Offic-er fnr the Cutrtberland C:'ouniy Ctaroner's Office is.lvlic reel 1.. Norris. C vvmbLrland County t'OP0110r. C cintttcl nfi)Im-,160J1 fi)r the Coroner'sd)fflc-: is 6375 f3-<iszi:1oY'c. li•uad, SuilC. 7 Mee-haniesb r.g.. Peartsylvania 11,1050 7 17-'16640418 (l, aYIIC) 717-766-6419 (11a:k), S_11]C)1,iw5,?,±,,'f?4;!:.}?`S:1`t (.t LClklll.? 1"ou retiuostod th.c ?rlamivr of dead; f - Tltumas.Ttatrl Y, Any !.?t1():riI317t)Sl #.1)]s Office 311iSrf t1R'~'c regard; ri.zt the Illarttler i:)f +:I.t ath fir any person tN'It1 died in 2()Ftl3 is not public r corrd and. wztttjil rtat become public uty&r crme.m ltw untr130 aavs trilev the end L)f f.he rear. Aurclalu 7-We Ri Seddon 12?i1 ANo rd'-.'r^ to: office of C?1.,';:n Rccor ds Final Determination L7u(&ct t No: AP 2009-4)'1 tia ??crket tie,,. AP 2009`41203 Appeals to denials, may be filed within 15 days t[1 the Conlino i t.aith's OPL''a Records Office. Contact inlorlratian for 1:he Pennsylvania ()N= Of Pell .lZet;artls is ?'el7 V ltrtc t11? r, 1 kc..cudve Directior fltmilsylvarua. ()frice of Opeil: Records C:;?_lrrtmlcn,?*:`t'ai.t11 f c?vstctt,e Buildi t.?l 0' I'1t?c?r 400 N rlrtlz Stre0t t an•isbiffg, T'eMBSYlval is t 712tl-U`2:5 rte,: cl?:?tYrtt_t?r?l5_ t?4?rs? j t,t, (websit ). Ci 1i ni'u ?J14?4 rt ?t i[c a_LIS (r??i:itd1]} i 17--346-9903 (.Phone) 717-425-5343 (Fax) ror..c?n?:r ,lowille 13,i.rkJ??rt, C:umberlanrl C owity f)1.icu .records OCit r Marlin ?vlo Meb, Soli ilar. ('tlll,tjv1aad C otintV CorDllEtfi (?f?Cl3 Susan S11all afliml, ?Olicit'Or pC•rltl'5YjvFiTjia State 1_'Urt'jiOr& ASSOCiatt,117 3 `:CIM1SQN=+r 15.1,'T t OFFICE OF OPEN RECORDS April 'X 2009 Rebecca. Hockley t>" GAL 300 Goluntbi.a Avenue I,ancastcr, 1': 1760;1 RFC;: DOCKET h- AP 2009-033'Dear Ms. Iloc:kley and M:r..ycrd.s,. Michael L. Norris Open Records O ieer C'urnbcrimid County C4 roWr 6375 Basehore. Road, Suite t MeclmWesbusg, PA. 17050 Thank you for w-ming to the O'fflum of Open Records regarding the Right-to- Know 1:iw, 65 P.S. §§67.101, `111e OOR. has received an appeat or, April 271 2009.. This letter will explain otir process ari;3 pro it c the Agency a copy ofihe appal. Tlie OOR Ail.l assign mi Appeals Officer to review the ra:•e. i all procedural requirements have been. tact the Appeals Ofa:tccr will rcview the file; consult with agciwy mim se.l as iippri.)priate, seek any necessary additional information and issue a Fin Dclemination. *Hic Appals Officer may conduct a hearing, lout that decision is rion- app:alable. If all proce:d°aral requiu.ements have net been met the parties will receive. ,a 1Gttur st,:tinLg why th-1 appeal has ur of 1_*een accepted ;.rocs that no furber action is nemied. if adOitinnal inf'anwition is necessary to rmch a final De.termin.aliv n, rile Alapc. is rlg with n de,idline for submission. If either party would like. Ofilrzcr will a sk for it in writ; to subrrdt unsolicited itiicrniatio t tluy must Clio so zviih n seven 7 .business days fi'runa the gate of t.hi? letter and provide a copy to the opposing part}, Agencies are. reini ded that U.)c burden of proof rests t?Mi•tliem in :citing the exception, law, regulation, ;udi.c.ittl carder or privileige to deny a request. The: OOR Tats 30 calendar days to issue a. Final Determination, If you would lli ;,: more information, lease see our Web site ht ? (Icy xuecards.s arc.,a.us. Hrh.erc tail 1 ins. Dete:rmina6om; Will be posted. Rarxxtfully, f T ary Macrler Ex.4t;utivc Director C mmop,meattt:Ise.r.rm., Building 1 400 Fvdrm gs,rt.4,a mr t i.u ist;urp f'crnuvJvm-ua 17020-6225 M.034 ,03 , ? 1F: X, RECEIVED APR 7 ? 1G09 http' "openee:arA ?,?:1.In ,r '7-20121G 12-. LO' FF0M:j4Gr4_ r r, r, 7;? F "tJ RECEIVED i?' 1? fj 7 'tin# pennsy vania. OPFICE OF OPEN RECOilDS Executive Director Off cc or Opel) R.ecorcis t urnntonwc4tlt.h Key,;tone Building 400 Norlh 411 Florn t;i.atrist?trrs;, PA 1712o-0-2f, tf.c: k l.gltt W KnMY T13W Ap' k%J Uetii?tT qr Ptsrtial ITcrtlttl l}v AAtrenc. Dair Fxc c .give !Director: OFFICE OF OPEN RECORDS This ie a in appeal u-Me:r the f1cP irYlvanin Right to 65 P.. §67.101, rcyuescc.<! c?c rrrrrt,.? frcwn. Curtlbztl nd Oct, Coicaner The Agency d.gttied or Paruaily denied my -oq' fur n4 rrrr at;grl. Ut"M t am .1pPealinl+, ?ile dentat of my reque.x, trader sectiota 13t.1 c;r the 1.aaa and provide ttu; ic,!kYwLng inrormarion in accordance with .hc raw Requester's mune: Rebecca HoCkley . AddressiCltyd'Stat4!1310 Columbia Ave*_,?^Lanca_s#er PA ' 7 Q3 t Date oflt:i?tht to Kiww request: lipr1?, t 0Qa llate offteerriv R.C$P( T::IcPhune and rxx number; 7i 7 735 7305 t`P) _.717, 2_ a5 7457_(f} Concise statement or racts (may attach additional }rates :.f ncces:tary) ! requested tho manner of cleath in the autopsy of Thomas Rainey. >tiTami attd ar3<<ress trf Agency: y: WGA , 1300 Columbie Ave,, Lancaster PA 17603 'tiara- S11d Ude Of !1'e, Agency official wbc dcxzicd the mqucst,R r infortnation. Cumberland Co. Coroner, 6375 Base-bare Road, Suite 1, Mechanicsburg PA 170150 iDe?Crtpt on cf t41e. reccrrds.reulFats.tcd: Manner voffdeatti far Tbamas Rain(.% j`?1. any Z,"'f`e)CEYi<1.. Ul7t}r'f' xiilirll the re que•si:r 3Stit'rtS tiirat _he retard is n public record-, _.r._ PA Right-To-Know L.avr :'Address any arilunds relied upon by the Agetcy ror denial cwt tote rCqu?st: Purdons -Title 16 Seclion 1251 Respcctfltll} Su4>rmurd, rah-.,- -4x?rey _. --~--- --- -- - -- - --- -- ??' k Gquired dnrurnentg to include t>d3ris np.pea iri}it r?l v:riv ingi RTC. re[jU es . t hgenry s3eni;tt • pennsyLvania OFFICE OF OPEN RECORDS FINAL DETERMINA7.:IQN IN THE MATTER Or REUF,CCA IYOCKLrY Complainant V Docket No.: AP 2009-0337 CUMBERLAND COUNTY CORONER Resporident INTRODUCTION Rebecca Hockley ("the Citizoif') fled a right-to-know reciuest t"Reyuest') witl) the Curnhcrlane County Coroner ("the Coroner"), pursuant to the Ribht to Know Law ("RTKt-''); 65 P.5, §67.101, et. seq,, She sought the matnicr of death for 71iomas Rainey. The Coroner denied the Citizen's request. The Citizen fled a timely appeal. with tlyc Office of Open Recordq ("OOR" ). For the reasons set forth in this, Final Determination, the appmal is denied and the Coroner is not require(! to take any #iutber action. FAC_JIJAL BACK-QR 1t?ND The Citizen filed the Request with the Coroner on April 17, 2009. Specifically, she; sought records. revealing the manner of death of Thor as. Rainey who was found dead on April 16, 2009. On April 23, 2009 Michael Norris, Cumberland County Coroner, denied the request stating that any information. the Coroner's office may hav-, regarding the death of an individual who died in 2009 is not public accord and would not become public until. 30 days after the end of th,e year. 11c. Citizen timely appealed the denial to the OOR on 'March 20, 2009, I EGAL ANALYSIS The Office of Open Records is authorized to bear appeals for all Commonwealth and. local agencies. Sep 65 P.S, §67.503(a). The C(m)ner is a local agency subject, to the RTKL. See 65 P.S. y 67.302. The RTKL defuizs a'"public record" as, "A record, including a finan.cial.record, of a Commonwealth or local. agency that: (1) is not exempt.undcr.section 708; (2) is not exempt from being disclosed under any other Federal or State law or regulation or judicial order or decree; or (3) is not protected by a privilege," 65 P.S. §67.102. A record in the possession of a.local agency is presumed to be a public record unless: (1) the record is exempt' under Section 708-.(2) the record is protected by. t privilege; or (3) the record is exempt from disclosure under any other federal or State law ar regulation or judicial older or decree. See 65 P.S. (17,305. The issue Ibefore the OOR is Krliether manner of death, information contained within an autopsy report is a public record. As the Coroner notes, the OOR has already addressed this issue in Brubaker v. Lwitaster County OOR Dkt. 2009-0104 and (boar' v. Butler C<ounly Coroner Corder, OOR Olrt_ 2009-0203. 'Those determinations are binding on this case. In those eases, the OOR addressed the issue as follows: .Autopsy reports have a long and .split history 41 Pennsylvania courts. In 1906, the Superior Court. ruled detcrmined that autopsy reports are "oflicial.records of the coroner's offiee" and thus should be released under the Coroners Act. See In re Dillon 674 A.2d 735, 739 (Pa. Super. Ct. 1996) later cited: favorably by the Supreme Court, See lit rc Bitch In D, 880 A-7d 508, 576,77 (Pa. 2005). The Commonwealth Court took' the opposite position, holding that. autopsy reports ate not "official records" covered by the Act and that the, statute only requires coroners to disclose documentation of the cause of death and whether the death. resulted from foul play. See ; Anstouni Tribune?P:ul?l' Ca. v. Ross, 871 A.."d 324, 330-31 (Pa. Co nraw. Ct. 2005). In Pcrtn Jersey, the Supreme Court reversed the Commonwealth Court's ruling holding that an autopsy is art official duty ofa coroner.. The Court. stated that "[ilt follows logically that a coroner's resulting autopsy reports constitute `Official records and papers' ,within the meaning of [the Act]," Recognizing the increased access the public would hive to potentially privileged information, the Court explained that trial courts would be able to address these types of "kgitintatc" concerns to limit. access to autopsy reports based on privacy, or privilege grounds where warranted. In a footnote, the Supreme Court noted the RTK law' took effect on Janum-y 1, 2009 and therefore had tie application to the underlying events of the Penn Jersey Case. 'Me Court stated: We note that. section 708(b)(20) of the recently effective Act 3 of 2008, the Right- to-Know Law," provides an exception from public access for certain records 3 relating to autopsies. See 65 P.S. §67.708(b)(2)). The Right-to-Know Law further provides that "if the provisions of this act regarding access to records conflict with Any other Fe4eral or State law, the provisions of this act shall not apply." See 65 P.S. §67.3101.. The Right-to-Know Law became effective on January 1, 2,009 and thus has no application to. the eventq underlying this case. Accordingly, we exl)res5 no opinion at. this time on the relationship between the Coroner's Act and the RighWo-Kltow Law. The Supreme Court unequivocally held in -Penn that autopsy reports are official records of the Coroner to be filed within 30 days after the end of each year "for the. in.spec-tion of alt persons intet'ested tb.erein ' It is the view of the OOIt that the mandate of the Coroner's Act. continues to govern public access to autopsy reports, which the Court has deemed to be an "official .record" of the Coroner's Office. Thus, as official records of the coroner's office autopsy report-, are public record, as defined under the RTKL, as of the, date of required filing - 30 days after the end of each year. If a citizen requests an autopsy report, and it has been tiled with the prothonotaryin accordance with the Coroner's ,Act, the record is a public .record and available under the RTKL. If the autopsy report has not yet. been filed -under the Coroner's Act, the autopsy report may be protected. mider Section 708(b)(20) of the RrK.L until made public as governed by the provisions of Coroner's Act. In this case, the requested record is a public record under the RTKL when. it is cl.osited with the protltonotary's office as required by the Coroner's Act. 'rh.omas Rnincy died in. April, 2009. As such, the autopsy report will, be available 30 days alter the end of 2009. Therefore, the appeal is denied. 4 CONCLUSION For the foregoing reasons, Citizen's appea:t is denied. The Office of Open Records finds the Coroner is not required to take any further action. This Final Deten-nination is binding on. the parties. Within thirty (34) days of the.inailing date of this Determination, eitliet panty may appeal to the Common Pleas Court of Cumberland County. All parties must be sen>ed with notice of the appeal.. The Office of Open Records also shall be served notice ond. have an opportunity to respond according to court rules. 65 P.S §67:1301. qje. parties are further advised that a copy of this Final Determination will appear on the Of ice of Open Records wehsite, L1tt.:fIggCIUCCut 155.-talc. a.us FINAL DETEMITNATTON. ISSI< U"D May 27', 2009 ?.'- . 4,11ZI -4, APPEALS OFFICER NATHANAEL J. BYERLY, ESQUIRE 5 s H E A R S T corporation Kristina E Findikyan Counsel June 24, 2009 Offla of General Counsel Eve Barton Vice Pruidew and General Counsel Jonathan R Donnellan ChristopherA Fraser Larry M Loeb Mark C Redman Calvin Siemer Debra S Weaver Senior Counsel VIA FEDERAL EXPRESS AND EMAIL (tmutchler(,state.pa.us) Ms. Terry Mutchler Executive Director Commonwealth of Pennsylvania Office of Open Records Commonwealth Keystone Building 400 North Street, 4th Floor Harrisburg, PA 17120-0225 Re: Petition for Reconsideration of WGAL Open Records Request, Docket # AP 2009-0337 Dear Public Records Officer: Pursuant to 1 Pa. Code § 35.241, Rebecca Hockley and WGAL-TV, a Hearst Television, Inc. station (collectively, "WGAL") hereby request that the Office of Open Records reconsider its Final Determination in In the Matter of Rebecca Hockley v. Cumberland County Coroner, Docket No. AP 2009-0337 (a true and correct copy of which is attached hereto as Exhibit A). Lisa Antonini David Burgas carolene S Eaddy Kristina E Fiakkyan Bridgette Fitzpatrick Carl G Guida Audra Kujawski Hart Robert j Hawley Alain E 1 ewes Kevin) McCauley Aimee Nisbet Courteaay O'Connor Kenan j Packman Peter P Rakbar Eva m Saketkoo Maureen Walsh Sheehan Jonathan Sirota Ravi V Sitwala Jack spin Counsel Catherine A Bostron S"aary Harvey L Lipton Of Counsel WGAL respectfully contends that the Final Determination contained an error of law. Pursuant to 65 P.S. § 67.708, the "manner of death" of a deceased individual - which is all WGAL sought by its Open Records Request - is not exempt from access by a requester under the Right-To-Know Law (65 P.S. §§ 67.101, et seq., as amended) (hereinafter the "RTKL") and no other statute, including the Coroner's Act, prohibits its disclosure. Procedural Background On April 17, 2009, on behalf of WGAL, Ms. Hockley sent an Open Records Request (hereinafter, the "Request") to Joanne Burkhart, the Cumberland County Open Records Officer requesting "the manner of death for Thomas Rainey," a true and correct copy of which is attached hereto as Exhibit B. 300 West 571h Street New York, NY r00s9-3792 T 212 649 2009 F 646 280 2009 kfiudikyan@hearst.com By letter dated April 23, 2009, Michael L. Norris, the Coroner and Open Records Officer for the Cumberland County Coroner's Office, denied the Request, a true and correct copy of which is attached hereto as Exhibit C. Citing 16 P.S. § 1251 (hereinafter the "Coroner's Act"), Mr. Norris stated in part that "[a]ny information this office may have regarding the manner of death for any person who died in 2009 is not public record and would not become public under current law until 30 days after the end of the year." WGAL appealed the denial of the Request, which was received by the Pennsylvania Office of Open Records on April 27, 2009 (a true and correct copy of which is attached hereto as Exhibit D . By Final Determination dated May 27, 2009, the Pennsylvania Office of Open Records affirmed the denial of the Request. The Office of Open Records erroneously interpreted the Request as seeking an autopsy report and found that its previous determinations in Brubaker v. Lancaster County, OOR Dkt. 2009-0104, and Yarnall v. Butler County, OOR Dkt. 2009-0203 (both of which sought copies of autopsy reports) were binding on WGAL's Request. The Final Determination in this case did not consider or address the portion of 65 P.S. § 67.708(20) providing that the "manner of death" of a deceased individual is not exempt from the RTKL. LEGAL ANALYSIS The Final Determination correctly found that the Coroner is a local agency subject to the RTKL. See Final Determination at 2 (citing 65 P.S. § 67.302). A record in the possession of a Commonwealth local agency is presumed to be a public record. 65 P.S. § 67.305(a). A "public record" is: "A record, including a financial record, of a Commonwealth or local agency that: (1) is not exempt under section 708; (2) is not exempt from being disclosed under any other Federal or State law or regulation or judicial order or decree; or (3) is not protected by a privilege." Final Determination at 2 (citing 65 P.S. § 67.102). "The burden of proving that a record of a Commonwealth agency or local agency is exempt from public access shall be on the Commonwealth agency or local agency receiving a request by a preponderance of the evidence." 65 P.S. § 67.708(a)(1). That burden here has not been met. The "manner of death" of a deceased individual is specifically not exempted from public access under section 708 of the RTKL. The express statutory language of 65 P.S. § 67.708(b)(20) only exempts: 2 "An autopsy record of a coroner or medical examiner and any audiotape of a postmortem examination or autopsy, or a copy, reproduction or facsimile of an autopsy report, a photograph, negative or print, including a photograph or videotape of the body or any portion of the body of a deceased person at the scene of death or in the course of a postmortem examination or autopsy taken or made by or caused to be taken or made by the coroner or medical examiner." The provision goes on to state: "However, "[t]his exception shall not limit the reporting of the name of the deceased individual and the cause and manner of death." 1d. (emphasis added). Based on the unambiguous statutory language, the Legislature clearly intended that the "manner of death" of a deceased individual be subject to public access under the RTKL and not exempt from disclosure. Nor is the "manner of death" of a deceased individual "exempt from being disclosed under any other Federal or State law or regulation or judicial order or decree" under 65 P.S. § 67.102(2).' While the RTKL does provide that "[i]f the provisions of this act regarding access to records conflict with any other Federal or State law, the provisions of this act shall not apply," 65 P.S. § 67.3101.1, the Coroner's Act places no limitation on the disclosure sought here and is not applicable to WGAL's Request. According to the Coroner's Act, the Coroner, within thirty days after the end of each year, is required to deposit "all of his official records and papers for the preceding year in the office of the prothonotary for the inspection of all persons interested therein." 16 P.S. § 1251. In Penn Jersey Advance, Inc. V. Grim, 599 Pa. 534, 962 A.2d 632, 636 (2009), the Pennsylvania Supreme Court held that a coroner's autopsy report is an "official" record or paper within the meaning of Section 1251 of the Coroner's Act. The Court did not decide, and did not even mention, whether the "manner of death" of an individual is open to public access under the RTKL. In fact, the Court expressly stated that it was not opining on any relationship between the RTKL acid the Coroner's Act: 1 The "manner of death" of a deceased individual is also not exempt pursuant to 65 P.S. § 67.102(3). The Final Determination does not claim that manner of death is subject to any privilege, we are not aware that it has been so claimed by the Coroner, and the Legislature expressly determined that it was not subject to a "privilege" when it sanctioned the reporting of "the name of the deceased individual and the cause and manner of death" in 65 P.S. § 67.708(b)(20). 3 "We note that section 708(b)(20) of the recently-effective Act 3 of 2008, the "Right-to-Know Law," provides an exception from public access for certain records relating to autopsies. See 65 P.S. § 67.708(b)(20). The Right-to-Know Law further provides that "[i]f the provisions of this act regarding access to records conflict with any other Federal or State law, the provisions of this act shall not apply." See 65 P.S. § 67.3101.1. The Right-to-Know Law became effective on January 1, 2009, see 65 P.S. § 67.3104(3), and thus has no application to the events underlying this case. Accordingly, we express no opinion at this time on the relationship between the Coroner's Act and the Right-to-Know Law." See id. at 633 n.2 (emphasis added).2 This Office's finding in this case that "the requested record is a public record under the RTKL when it is deposited with the prothonotary's office as required by the Coroner's Act" (Final Determination at p.4) is erroneous and does not address the Request, which was not for an autopsy report but for the "manner of death." The cited provision of the Coroner's Act does not exempt the "manner of death" of a deceased individual nor does it conflict with the RTKL. 65 P.S. § 67.102(2); 65 P.S. §67.3101.1. Simply because the Coroner is required to deposit his "official records" with the prothonotary 30 days after the end of the year does not in any way affect whether the "manner of death" of a deceased individual can be reported under the RTKL. While the Legislature arguably provided this Office with certain flexibility in choosing the form of disclosure, it made absolutely clear the Office's obligation to provide "the name of the deceased individual and the cause and manner of death" under the RTKL. 65 P.S. § 67.708(b)(20). Whether this Office provides that information by way of a redacted document or otherwise is of no moment. The "manner of death" information by statute must be released. The RTKL's clear statutory language mandates that WGAL's Request, seeking the "manner of death for Thomas Rainey," be granted. The Coroner has not met his burden of proving that the information is exempt under the RTKL. For all of the reasons set forth herein, WGAL respectfully requests that this Office reconsider its Final Determination in this matter and immediately make available the requested information. 2 indeed, even the Supreme Court acknowledged that Section 708(b)(20) of the RTKL does not exempt all information and records relating to autopsies; the Court stated the relevant section only exempted certain records, which accurately reflects that, among other things, "manner of death" is not exempt. See 962 A.2d at 633 n.2. 4 Should this Office need further information on this matter, I can be reached at (212) 649-2009. I look forward to your prompt response. Respectfully Submitted, . Cp. 'Knstin'a E. Findikyan cc: Mr. Michael Norris Office of the Coroner, Cumberland County 6375 Basehore Road, Suite 1 Mechanicsburg, PA 17050 VIA FEDERAL EXPRESS AND EMAIL (mnorris(a,ccya.net) Mr. Barry Fox Open Records Office VIA EMAIL (bafox(a,state.ya.us) Ms. Corinna Wilson Open Records Office VIA EMAIL (coriwilson a,statemams) 5 EXHIBIT A pennsyLvania OFFICE OF OPEN RECORDS FINAL DETERMINATION IN THE MATTER OF REBECCA HOCKLEY Complainant V. Docket No.: AP 2009-0337 CUMBERLAND COUNTY CORONER Respondent INTRODUCTION Rebecca Hockley ("the Citizen' j filed a right-to-know request ("Request") with the Cumberland County Coroner ("the Coroner"}, pursuant to the Right to Know Law ("RTKI: ), 65 P.S. §67.101, et. seq,. She sought the manner of death for Thomas Rainey. The Coroner denied the Citizen's request. The Citizen filed a timely appeal with the Office of Open Records ("OOR"). For the reasons set forth in this Final Determination, the appeal is denied and the Coroner is not required to take any further action. FACTUAL BACKGROUND The Citizen filed the Request with the Coroner on April 17, 2009. Specifically, she sought records revealing the manner of death of Thomas Rainey who was found dead on April 16, 2009. On April 23, 2009 Michael Norris, Cumberland County Coroner, denied the request stating that any information the Coroner's office may have regarding the death of an individual who died in 2009 is not public record and would not become public until 30 days after the end of the year. The Citizen timely appealed the denial to the OOR on March 20, 2009. LEGAL ANALYSIS The Office of Open Records is authorized to hear appeals for all Commonwealth and local agencies. See 65 P.S. §67.503(a). The Coroner is a local agency subject to the RTKL. See 65 P.S. § 67.302. The RTKL defines a "public record" as: "A record, including a financial record, of a Commonwealth or local agency that: (1) is not exempt under section 708; (2) is not exempt from being disclosed under any other Federal or State law or regulation or judicial order or decree; or (3) is not protected by a privilege" 65 P.S. §67.102. A record in the possession of a local agency is presumed to be a public record unless: (1) the record is exempt under Section 708; (2) the record is protected by a privilege; or (3) the record is exempt from disclosure under any other federal or State law or regulation or judicial order or decree. See 65 P.S. 67.305. The issue before the OOR is whether manner of death, information contained within an autopsy report is a public record. As the Coroner notes, the OOR has already addressed this issue in Brubaker v. Lancaster County, OOR Dkt. 2009-0104 and Yarnall 2 v. Butler County Coroner Corner, OOR Dkt. 2009-0203. Those determinations are binding on this case. In those cases, the OOR addressed the issue as follows: Autopsy reports have a long and split history in Pennsylvania courts. In 1996, the Superior Court ruled determined that autopsy reports are "official records of the coroner's office" and thus should be released under the Coroner's Act. See In re Dillon. 674 A.2d 735, 739 (Pa. Super. Ct. 1996) later cited favorably by the Supreme Court. See In re Buchanan. 880 A.2d 568, 576-77 (Pa. 2005). The Commonwealth Court took the opposite position, holding that autopsy reports are not "official records" covered by the Act and that the statute only requires coroners to disclose documentation of the cause of death and whether the death resulted from foul play. See Johnstown Tribune Publ'g Co. v. Ross. 871 A. 2d324,330-31 (Pa. Commw. Ct. 2005). In Penn Jersey, the Supreme Court reversed the Commonwealth Court's ruling holding that an autopsy is an official duty of a coroner. The Court stated that "[i]t follows logically that a coroner's resulting autopsy reports constitute `official records and papers' within the meaning of [the Act]" Recognizing the increased access the public would have to potentially privileged information, the Court explained that trial courts would be able to address these types of "legitimate" concerns to limit access to autopsy reports based on privacy or privilege grounds where warranted. In a footnote, the Supreme Court noted the RTK law took effect on January 1, 2009 and therefore had no application to the underlying events of the Penn Jersey Case. The Court stated: We note that section 708(b)(20) of the recently effective Act 3 of 2008, the Right- to-Know Law," provides an exception from public access for certain records 3 relating to autopsies. See 65 P.S. §67.708(b)(2)). The Right-to-Know Law further provides that "if the provisions of this act regarding access to records conflict with any other Federal or State law, the provisions of this act shall not apply." See 65 P.S. §67.3101. The Right-to-Know Law became effective on January 1, 2009 and thus has no application to the events underlying this case. Accordingly, we express no opinion at this time on the relationship between the Coroner's Act and the Right-to-Know Law. The Supreme Court unequivocally held in PM Jersex that autopsy reports are official records of the Coroner to be filed within 30 days after the end of each year "for the inspection of all persons interested therein." It is the view of the OOR that the mandate of the Coroner's Act continues to govern public access to autopsy reports, which the Court has deemed to be an "official record" of the Coroner's Office. Thus, as official records of the coroner's office autopsy reports are public record, as defined under the RTKL, as of the date of required filing - 30 days after the end of each year. If a citizen requests an autopsy report, and it has been filed with the prothonotary in accordance with the Coroner's Act, the record is a public record and available under the RTKL. If the autopsy report has not yet been filed under the Coroner's Act, the autopsy report may be protected under Section 708(b)(20) of the RTKL until made public as governed by the provisions of Coroner's Act. In this case, the requested record is a public record under the RTKL when it is deposited with the prothonotary's office as required by the Coroner's Act. Thomas Rainey died hi April, 2009. As such, the autopsy report will be available 30 days after the end of 2009. Therefore, the appeal is denied. 4 CONCLUSION For the foregoing reasons, Citizen's appeal is denied. The Office of Open Records finds the Coroner is not required to take any further action. This Final Determination is binding on the parties. Within thirty (30) days of the mailing date of this Determination, either party may appeal to the Common Pleas Court of Cumberland County. All parties must be served with notice of the appeal. The Office of Open Records also shall be served notice and have an opportunity to respond according to court rules. 65 P.S §67.1301. The parties are further advised that a copy of this Final Determination will appear on the Office of Open Records website, httn:Honenrecords.state.na.us FINAL DETERMINATION ISSUED May 27, 2009 APPEALS OFFICER NATHANAEL J. BYERLY, ESQUIRE 5 EXHIBIT B April 17, 2009 Rebecca Hockley WGAL-TV News 8 1300 Columbia Avenue Lancaster, PA 17604 Joanne Burkhart 1 Courthouse Square Suite 200 Carlisle, PA 1.7013 Ms. Burkhart: Please consider this an official written request for information from WGAL-TV. On April 17, 2009, we requested the manner of death for Thomas Rainey from. Mike Norris, Cumberland County Coroner. 1 was told by Mr. Norris that he was not required under the Open Records Law to provide the manner of death. 1 understand that cause and manner of death constitute 'public records' pursuant to Pennsylvania's Right-To-Know Law ( 65 P.S. §§ 66.1 et. M.• as amended). You may contact me at any time at the followiffgphone tiumber`regardYiig arrangements for the disclosure of this information. If you decide to refiise this request, please provide me with a written statement of the reasons for denial. If your denial is based on statute, regulation or court ruling, please cite that law or case, including the specific section or sections in your written response. I look forward to the Cumberland County Coroner's Office making this information available to me in future requests. Respectfully, Rebecca Hockley Assignment Manager WGAL News 8 rizocl:lc?v "ci ticarst.co? 717-735-7305 EXHIBIT C OFFICE OF THE CORONER MICHAEL. L. NORRIS CORONER Tooo C. EcK6HIROOE CHIEF DEPUTY CORONER Va*dr I"d llw gyn. P? Y .r.w. . l ??w uary„o III RICIi4Rz C. M-100 .EKAUPF OFFIJTY CORof%wi9 MATTI41:W S. STONER OE'PUTY CORONER CUMBERLAND COUNTY MisMIK R. MGGALEM SOLICITOR 6375 BASEHORe RdA*, Sum I MECHAMICSbURG, f 17050 PNaKe 71 7-7664;34 18-- Fxx 71776'8-641 9 23 April 2009 Rebecca Hockley WGAL-TV News 8 1300 Uumbia Avenue Lancaster, Pa 1.7604 Ms. Hoekl.ey: This letter is in reply to a request for information. forwarded to me by The Ct mliedand .County Open Records Officer. To insure proPcr response in the future pit. me diTect inquiries f6r information from the Cumberland County Coron,er'&. fiice to AGENCY OPEN RECORDS OMCEP.. The Opcyn Records-Officer for tbe'CIUMberiand County.Cor.OnOr's.Offico ig-Micbao] L. Norris, Cumberland County Coroner. Contact information for the Coroner's -office. is 6375 Basehom Road, Suite 1 Mechanicsburg, Peimsylvania 17050 717-766-641.8 (Phone} 717=766-6419 (Fax) mnorri. cucc?a.net (e-mail) You requested the manxmer of death for Thomas Rainey.. Any Wormation this office may have regarding the Manner of death for any person who- died in 2009 is not public record and wotild not bec-ome,ltiNk under cUrrent law uutit 30 days after the end of the year, Pin-dons Title 16 Section 1251 Also refer to: Office of Open Records Final Dete miination Dockct No: AP 2009-0104 Docket No: AP 2009-02203 Appeals to denials may be tiled witkiia 15 days to the CamrnvIMP-9 th's Open Records Office Contact information. for the Nnnsylvari a Office, of Open Records-is Terry Mutel-der, )executive Director Pennsylvania Office of Open. Records Commonwealth Keystone Building 4`1' Floor 400 North Street Harrisburg, Pemisylvania 17120-022,5_ http:,•'lopenrec;ords.state.pa.u.s*.(vvobs tt-) o L)enree•or(ts(.CG:State.pa.«s.(e-mail) 717-346-9903 (Phone.) 717-425-5343 (Fax) 4K94K- - Coroner CC : File Jo?jme Burkhart, Ctunberland County Open reco di Officer Marlin. WCaleb, Solieitor. Cumberland CountyCoronem Of led Susan Shanaman, Solicitor Pennsylvania State Coroners Association EXHIBIT D F , COMMONWEALTH OF PENNSYLVANIA O-FrlcH or OPEN RECORDS April 28, 2009 Rebecca Hockley WGAL 300 Columbia Avenue Lancaster, PA 17603 RE: DOCKET # AP 2009-0337 Dear Ms. Hockley and Mr. Norris, Michael L. Norris Open Records Officer Cumberland County Coroner 6375 Basehore Road, Suite 1 Mechanicsburg, PA 17050 Thank you for writing to the Office of Open Records regarding the Right-to- Know law, 65 P.S. §§67.101, ("RTKL"). The OOR has received an appeal on April 27, 2009. This letter will explain our process and provide the Agency a copy of the appeal. The OOR will assign an Appeals Officer to review the case, if all procedural requirements have been met the Appeals Officer will review the file, consult with agency counsel as appropriate, seek any necessary additional information and issue a Final Determination. The Appeals Officer may conduct a hearing, but that decision is non- appealable. If all procedural requirements have not been met the parties will receive a letter stating why the appeal has not been accepted and that no further action is needed. If additional information is necessary to reach a Final Determination, the Appeals Officer will ask for it in writing with a deadline for submission. If either party would like to submit unsolicited information they must do so within seven (71) business days from the date of this letter and provide a copy to the opposing party. Agencies are reminded that the burden of proof rests with them in citing the exception, law, regulation, judicial order or privilege to deny a request. The OOR has 30 calendar days to issue a. Final Determination. If you would life more information, please see our Web site, httu://openrecords.state.pa us, where all Final Determinations will be posted. Respectfully, Terry Mutcbler Executive Director Commonwealth Keystooe Building 1 400 North Street, 4th Floor Harrisburg, Pennsylvania 17120-0225 (717)346-9.903 1 (717) 425-5343 (Fax) ?1GCE??CU C11 ttrR r G } ?y ?oo? http!/opetvecords.srate.pa.us ,7 ?7-2009 12- 10 FRpMcWGAL r 1 f C7a t -?:a i ?.r t i - - - e-:- pennsyLvania OFFICE OF OPEN RECORDS Executive Z}iractor Office of open Records Canulonwealth Keystone Building r 400 North Streit, 4`1 Floor [-iarrisbu%, PA 1 7 1 20-0225 Re, ttlgftt to ICnaw Lave App tsl ? Dealal- or P"rtlal-De 'by APency . RECEIVED ArR 2 7 2009 OFFICE OF OPEN RECORDS I1car executive Director: uetEed documents G7.101. 1 rcy 'I'bis is an appeal under the rennsyl?`ania Right to Know .Law, 65 P_S. § oast for Information. I gram Cumberland Co. Coroner. The Agency denied of partially denied My rW the denial of mY request, under section 11U1 of the Law and provide the following n ealing app information in accordance with thoLaw: Requester's name: AddresslCtty/state/Zip: 1300 C01umbi8 Ave I_an Dace of Alicncy Response- Date of Right to Kno- requesn 17 2009 717.295-7457 (f) Telephone and fax number: a , t,s if necessary) ?- C'unetsc: statement or fact_ (niay Attach additional p" of Thomas R8iI1@y. I requested the manner of death in the autopsy Name and address of Agency: W(3AL,1300 Columbia Ave., Lancaster PA 17603 -Name and title of the Agetlcy official who d=icd the request for information: Cumberland Co. Coroner, 6375 Basehare Road, Suite 1, NechanicsbUrg PA 17050 Description of the records requested: Manner of death for Thotri2's Rainey List any gmtinds upon which the requester asserts that the record is a public record- pp, Flight-To-Know l_aw Wounds relied upon by the A9MOY for denial of the request: Address any b? Purdons Title 16 Section 1251 (moat l)e signed) Respectfully Submitted, R6??", P,equired documents to Agency denial whit appea - xplrs of original RTC mlvest, 6 COM,NIONNVEAL.TH OF PENNSYLVANIA OFFICE OF OPEN RFCORDs VIA EMAIL AND FIRST CLASS US MAIL June 25, 2009 Kristina E. Findikyan Hearst Corporation Office of General Counsel 300 W. 57th Street, 40th Floor New York, NY 10019 RE: Petition for Reconsideration dated June 24100RDkt. AP 2009-0337 Dear Ms. Findikyan: We are in receipt of your Petition for Reconsideration dated June 24 in connection with the Office of Open Records Final Determination in Hockley is Cumberland County Coroner, OOR Dkt. AP 2009- 0337. We hereby grant your motion.. Until such time that our formal regulations are submitted and approved by the Independent Regulatory Review Commission in 2010, this office will follow the procedures set forth in Pennsylvania's General Rules of Administrative Practice and Procedure, 1 Pa. Code Section 35.241 with regard to this Motion. We note that the Cumberland County Coroner may file a response in the nature of an answer within 15 days of the issuance of this order granting reconsideration, or by Friday July 10, 2009. This office will issue a determination responsive to this Petition for Reconsideration no later than 30 days from the "mailing date" of your petition, or by Friday July 24, 2009. Please contact me if you have any further questions. Sincerely, Corinna V. Wilson Chief Counsel cc: Terry Mutchler, Executive Director, Office of Open Records Cumberland County Coroner Michael Norris Commommalth Keystone Building 1400 North Street, 4th Floor Harrisburg, Pennsl4vania 17120-0225 (717)346-9903 1 (717) 425-5343 (Fax) http;//openrecords.state.pa.iis OFFICE OF THE CORONER' MICHAEL L. NoRms CORONER Tooo C. ECKENRODE CHIEF DEPUTY COR014ER I,.WA rrIawd 1.001}•. PA "NNW 'erba- RICHARD C. MIDDLEKAUFF DEPUTY CORONER MA7t MEW S. STONER- DEPUTY CORONER CU-MBERLA.ND COUNTY MARLIN R. MCCALE13 SOLICITOR 6375 SAmmoRE Roao. SUITE I MECHANIG89UM, PA 17050 PHONE 717-766-64 t 8 F'AX 717-766-6414 10 July 2009 Ms. Terry Mutchler Executive Director Commonwealth of Pennsylvania Office of Open Records Commonwealth Keystone Building 400 North Street Harrisburg. PA 17120-0225 RE: Petition for Reconsideration of WGAL Open Records Request, Docket # AP 2009-0337 Dear Public Records Officer: On May 27, 2009 The OOR appropriately affirmed the denial of the request of Rebecca Hockley for the manner of death of a deceased individual in accordance with 16 P.S. § 1251 WGAL, on behalf of Rebecca Hockley, now contends that the final determination by the OOR contained an error of law in that the "manner of death" is not exempt under the Right To Know law and that no other statute, including the Coroner's Act, prohibits its disclosure. In my denial of the request of 17 April 2009 on 23 April 2009,1 stated "Any information this office may have regarding the manner of death for any person who died in 2009 is not public record and would not become public under current law until 30 days after the end of the year" and referred to Purdons Title 16 Section 1251. In the final determination, the OOR states 'the issue before the OOR is whether the manner of death, information contained within the Autopsy Report, (emphasis added) is a public record." The OOR correctly determined that the Autopsy Report is not public until 30 days after the end of the year in which the death occurred. However, the request was for the manner of death. and the determination of the manner of death is the responsibility of the coroner who investigated the death, not the pathologist who completed the autopsy. (SEE ATTACHMENT) The OOR, in its decision, notes that in Penn Jersey the Supreme Court dealt with the question of autopsy reports and unequivocally held that autopsy reports are official records to be filed within 30 days after the end of each year and thus determined that they are not public records until that time. However, if we look back to Penn Jersey, it refers to Johnstown Tribune. 871 A.2d at 329 and in the final paragraph of the opinion written by Judge Leavitt Filed: March 30, 2005, the court says: "In sum, we hold that for the purposes of Section 1251 of the Coroner's Act, 16 P.S. §1251, a coroner's "official records and papers" means documentation of the cause and manner of deaths investigated by the coroner." Following the Court's thoughts in Johnstown Tribune, it is apparent that the documentation of the cause and manner of deaths, being official records and papers, are not public until 30 days after the end of the year in which the death occurred. It was based on that opinion that I refused to release the manner of death that was requested regarding a death that had occurred only 3 days prior to the request on April 17' , 2009. Respectfulil Submi tett. Michael L. Norris, Coroner Attachment - 1 cc: Christina E. Findikyan 300 West 571h Street New York, NY 10019-3792 VIA 151 CLASS MAIL AND EMAIL (kfindikyan lhearst.com) Mr. Barry Fox Open Records Office VIA EMAIL (bafoxRstate.pa.us) Ms. Corinna Wilson Open Records Office VIA EMAIL (coriwilson(ED-state.pa.us) 2 AUTOPSY REPORT - Continued Name: RAINEY, Thomas Autopsy No.: C-09-244 Page: 2 OPINION; After review of the history and complete autopsy on the body of 22-year-old Thomas Rainey, eath is attributed to? Manner of death will be certified by the coroner. w4a,K(u - ADD S. Funke, MB Forensic Pathologist SF!anir 7 COMMONWEALTH OF PENNSYLVANIA OFFICE OF OPEN RECORDS ,-Mr.: VIA EMAIL AND FIRST CLASS US MAIL July 23, 2009 Kristina E. Findikyan Hearst Corporation Office of General Counsel 300 W. 57th Street, 40th Floor New York, NY 10019 RE: Petition for Reconsideration dated June 24 / OOR Dkt. AP 2009-0337 Dear Ms. Findikyan: As you know, we granted a Petition for Reconsideration in the above-referenced matter on June 25, 2009. You had been told by the OOR that the timeframe for filing such a petition was 30 days, when in fact it is 15 days. You filed your Petition for Reconsideration on June 24, 2009, believing it was timely. We noted in our letter granting the Petition that in the absence of applicable Office of Open Records interim regulations regarding petitions for reconsideration, this office will follow the procedures set forth in Pennsylvania's General Rules of Administrative Practice and Procedure, 1 Pa. Code Section 35.241. The timeframe set forth in that regulation is also 15 days. We believe that while your appeal was technically untimely, you relied to your detriment on this office's erroneous instructions and that.-no-negligence-or.delay. was,involved-on-your.-part,-We..-•.._ ••-••.••••.•- note here that Pennsylvania courts have addressed untimely appeals where the untimeliness is not the fault of the appellant or appellant's counsel. Pennsylvania courts and administrative agencies allow an appeal nunc pro tune when "fraud or some breakdown in the [government's] operation through a default of its officers" or the non-negligent conduct of the appellant's attorney or his staff caused a delay in filing the appeal. See Nixon v. Nixon, 329 Pa. 256. 198 A. 154 (1938); see also Bass v. Commonwealth Bureau o„ ('Corrections. et al., 485 Pa. 256, 401 A.2d 1133 (1979); see also Rest Penn Power Co. v. Goddard, 460 Pa. 551. 556.333 A.2d 909.912 (1975). We therefore re-grant your Petition for Reconsideration dated June 24, 2009 nunc pro tuna You should expect the Determination in Response to the Petition for Reconsideration tomorrow via e- mail, with a copy sent in the U.S. mail to follow. Please contact me if you have any further questions. Commonwealth Keystone Building 400 North Street, 4th Floor Harrisburg, Pennsylvania 17120-0225 (717)346-9903 1 (717) 425-5343 (Fax) http;//opcnrccords.state.pa.us Sincerely, Corinna V. Wilson Chief Counsel cc: Terry Mutchler, Executive Director, Office of Open Records Michael Norris, Cumberland County Coroner 2 1 *11 DETERMINATION UPON PETMON FOR RECONSIDERATION IN TIE MATTER OF REBECCA HOCKM Complainant V. CUMBERLAND COUNTY CORONER Respondent : Docket No.: AP 2009.0337 INTRODUCTION Rebecca Hockley (the "Citizen"), on behalf of herself and of her employer, WGAL-TV, a Hearst Television, Inc. station, filed a right-to-know request (the "Request") with Michael Norris, the Cumberland County Coroner (the "Coroner"), pursuant to the Right-to-Know Law ("RT1 ), 65 P.S. §67.101, et. seq,. She sought the manner of death for Thomas Rainey, who was found dead on April 16, 2009. The Coroner denied the Citizen's Request on April 23, 2009 (the "Denial" ), stating that any information the Coroner's office may have regarding the death of an individual who died in 2009 is not public record and would not become public until 30 W days after the end of the year. The Citizen filed a timely appeal with the OOR on April 27, 2009 (the "Appeal'). The OOR issued a final determination on May 27, 2009 affirming the Coroner's denial of the Request (the "Final Determination"), OOR Dkt. AP 2009-0337. Through her counsel, Kristina Findikyan, the Citizen filed a Petition for Reconsideration on June 24, 2009, asking the OOR to reconsider its Final Determination, alleging that the Final Determination contained an error of law (the "Petition for Reconsideration") and that, under the RTKL, the manner of death is not exempt and that no other statute, including 16 P. S. § 1214 et seq. (the "Coroner's Act"), prohibits its disclosure. Citizen had been told by the OOR that the statutory timeframe for filing such a petition was 30 days. The OOR granted the Petition for Reconsideration on June 25, 2009 by letter. The Coroner submitted a response in the nature of answer on July 10, 2009 (the "Response"). In his Response, the Coroner points to the Coroner's Act and case law. He argues that the information sought by the Citizen - the manner of death is available as part of the Coroner's official records and papers, which he is not required to release to the public until 30 days after the end of the year. . OOR subsequently decided that it would follow a 15-day deadline for petitions for reconsideration. In light of the changed circumstance, the OOR re-issued its grant of the Petition, for Reconsideration on the basis of the common law principle of nunc pro tune, that the Citizen had relied to her detriment upon the erroneous directives given by the OOR. t ' An appeal nunc pro tune may be allowed when "fraud or some breakdown in the court's operation through a default of its officers" or the non-negligent conduct of the appellant's attorney or his staff caused a delay 2 J y For the reasons set forth in this Determination upon Petition for Reconsideration, we affirm the Final Determination. LEGAL ANALYSIS Until such time as its final regulations are promulgated and finally adopted, the OOR has adopted the reconsideration provisions of Pennsylvania's General Rules of Administrative Practice and Procedure, 1 Pa. Code § 35.241. It is by this authority that the OOR entertains the Petition for Reconsideration submitted by the Citizen. In her Petition for Reconsideration, the Citizen contends that the Final Determination contained an error of law. Specifically, the Citizen states that the only record she sought in her Request was the "manner of death" of Mr. Rainey. She notes that by its express terms, the RTKL provides that this information is not exempt from access by a requester and that no other statute, including the Coroner's Act, 16 P.S. §§ 1214 and 1231-1260, prohibits the disclosure of this information. The Citizen points out that the Final Determination did not consider or address the portion of the RTKL that provides that the "manner of death" of a deceased individual is not exempt from the RTKL. While the OOR's Final Determination did not address this argument, the Final Determination was nonetheless correct. Here, we address the issues raised by the Citizen and the Coroner in greater depth, in an effort to lay out the current law on access to the official records and papers created, held and filed by this Commonwealth's coroners pursuant to the Coroner's Act. This law has been in flux through recent case law interpreting both the prior version of the RTKL and the Coroner's Act, as well as through in filing the appeal. See Nixon v. Nixon, 329 Pa. 256,198 A. 154 (1938); see also Bass v. Commonwealth Bureau of Corrections, et al., 485 Pa. 256,401 A.2d 1133 (1979); see also West Penn Power Co. v. Goddard, 460 Pa. 551, 556, 333 A.2d 909,912 (1975). 3 A the most recent amendment to our state's open records law, which resulted in the RTKL referenced above. There has been some confusion and we hope to clarify this office's interpretation of the law today. For ease of discussion, we will define our terms. The Coroner's Act does not define the terms "official records and papers of the Coroner", "autopsy report" or "manner and cause of death." The OOR relies on the definitions supplied by the Pennsylvania Supreme Court in the recent case, Penn Jersey Advance, Inc. DBIA Easton Publishing Company. v. Grim, 599 Pa. 534 (2009). The Court in that case found that since conducting autopsy reports is a duty of the coroner,."it reasonably follows that the resulting autopsy report is an official record or paper." Id: at 540. Before this, the Commonwealth Court determined that if no autopsy was performed, the manner and cause of death may be a stand alone record. Johnstown Tribune Publishing v. Ross, 871 A.2d 324, 327 (Pa Cmwlth. 2005). Therefore, "Official Records and Papers" are those papers created, held and filed by a coroner pursuant to his or her duties under the Coroner's Act. These records may contain an autopsy report and information on the manner and cause of death. "Autopsy Report" is a record consisting of the report resulting from the autopsy performed by a coroner. The "Manner and Cause of Death Record" is a standalone record that a coroner will produce when no autopsy is performed, or it may be part of the Autopsy Report. By its terms, the RTKL does not apply when it is in conflict with another law. 65 P.S. 67.3101.1. The Coroner's Act governs the totality of the Official Records and Papers of a coroner and how and when these become public. The RTKL cannot require the immediate disclosure of the Manner and Cause of Death Record, as such disclosure 4 :r. w would be in conflict with the Coroner's Act. The Coroner is bound by the time and filing requirements set forth in the Coroner's Act and is not required to file the record sought by the Citizen - the Manner and Cause of Death Record - until 30 days after the end of the year. 1. The Request is for "official records" of the Coroner. In the Final Determination, the OOR analyzed the Request as one for an Autopsy Report, similar to the requests made in two prior OOR determinations, Brubaker v. Lancaster County, OOR Dkt. AP 2009-0104 and Yarnall v. Butler County Coroner, OOR Dkt. AP 2009-0203. However, the Citizen requested only the Manner and Cause of Death Record, which, as we noted, may be a stand alone record or may be information contained in an Autopsy Report. Under the Coroner's Act, the Coroner is not required to release his Official Records and Papers until 30 days after the end of each year.Z The initial issue here, then, is whether the Manner and Cause of Death Record constitutes part of the Coroner's Official Records and Papers. In Johnstown Tribune, the Commonwealth Court held: A coroner's statutory duty is to ascertain the cause and manner of suspicious deaths. It follows that "official" records and papers that a coroner must deposit for public inspection are those that state the cause of death and whether such death was caused by criminal activity or criminal negligence. Johnstown Tribune, 871 A.2d at 328. The Johnstown Tribune Court went on to hold that "a coroner's `official records and papers' means documentation of the cause and manner of death investigated by the 2 16 R S. § 1251 states: Every coroner, within thirty (30) days after the end of each year, shall deposit all of his official records and papers for the preceding year in the office of the prothonotary for the inspection of all persons interested therein. 5 w coroner." The Court found that an Autopsy Report, however, was not part of the Official Records and Papers of a coroner and thereby created a common law exception to access to Autopsy Reports in Pennsylvania. However, as noted in the OOR's. Final Determination, the Supreme Court subsequently extended the definition of Official Records and Papers, unequivocally holding in Penn Jersey that Autopsy Reports are Official Records and Papers of the coroner and all of such records must be filed within 30 days after the end of each year "for the inspection of all persons interested therein."' 962 A.2d at 636. Thus, Official Records and Papers of a coroner include Autopsy Reports as well as Manner and Cause of Death Records. The record sought by Citizen is clearly a public record, but the next question is when such a record becomes a public record. 2. The RTKL does not require immediate access to "official records" of the Coroner. The record sought by the Citizen is clearly a public record, but we must now resolve whether the RTKL requires the Coroner to provide access to the Manner and Cause of Death Record prior to the time set forth in section 1251 of the Coroner's Act, 16 P.S. § 1251. The Citizen points to the last sentence of section 708(b)(20) of the RTKL, 65 P S 67 708(bl(20which states "[t]his exception shall not limit the reporting of the name of the deceased individual and the cause and manner of death" as the basis for immediate access to the record. 3 Penn Jersey was argued before but issued immediately after the enactment of the RTKL. The Court noted that the RTKL had changed significantly but that its decision was based only on the Coroner's Act. 6 At first blush, the provision appears to be "an exception to the exception" and to evidence an intent by the General Assembly to make the Manner and Cause of Death. Record immediately available. But this is not the case, as the immediate disclosure of such records would conflict with both the timing requirements for filing the Official Records and Papers as well as the procedure for obtaining the information under the Coroner's Act. See 16 P.S. §§ 1251 and 1236.14 Specifically, the Coroner's Act provides that access to the coroner's records may be requested at any time under 16 P.S. § 1236.1. The release of the records under this provision is subject to the discretion of the coroner. However, 30 days after the end of each year, the coroner is required to file his/her official records with the prothonotary pursuant to 16 P. S. § 1251. Therefore, in this matter, even if the Coroner elects to withhold the records under 16 P.S. § 1236.1, which he may do, he is required to file them with the prothonotary pursuant to 16 P.S. § 1251. The RTKL, as always, does not apply when it is in conflict with another statute. 65 P.S. § 67.3101.1. Thus the Coroner's Act provisions regarding a § 1236.1. Requests for examinations and reports (a) Requests for examinations or other professional services by other counties or persons may be complied with at the discretion of the coroner pursuant to guidelines established by the county commissioners. (b) A set of fees and charges for such examinations or professional services shall be established by the coroner, subject to approval by the county commissioners, and shall be accounted for and paid to the county treasurer pursuant to section 1760. Payment for examinations or professional services shall be the responsibility of the county or person requesting such services. (c) The coroner may charge and collect a fee of up to one hundred dollars ($ 100) for each autopsy report, up to fifty dollars (S 50) for each toxicology report, up to fifty dollars (S 50) for each inquisition or coroner's report and such other fees as may be established from time to time for other reports and documents requested by nongovernmental agencies. The fees collected shall be accounted for and paid to the county treasurer pursuant to section 1760 and shall be used to defray the expenses involved in the county complying with the provisions of the act of March 2, 1988 (P.L. 108, No. 22), referred to as the Coroners' Education Board Law. 7 I which records of the coroner are public and when govern. The RTKL as a vehicle to obtain such records may be used only after the Official Records and Papers are filed with the prothonotary. Read like this, the would-be "exception to the exception" in the RTKL, section 708(b)(20) makes perfect sense when read together with the Coroner's Act and the cases interpreting it. The General Assembly attempted to codify the Commonwealth Court's holding in Johnstown Tribune, exempting Autopsy Reports from public disclosure, but making it clear that the coroners have a continuing obligation to file the Manner and Cause of Death Records pursuant to Section 1251 of the Coroner's Act and that such records would thus become public and accessible through the RTKL within 30 days of the end of each year. The Penn Jersey Court, however, interpreting the Coroner's Act to include Autopsy Reports within the definition of Official Records and Papers of a coroner effectively negated the overall exemption of Autopsy Records in the first clause of section 708(b)(20), but left the coroners' reporting requirements for Manner and Cause of Death Records unchanged in the second clause. As a side note, in addressing the disclosure and timing requirements of a coroner's records, the Supreme Court and Commonwealth Court both reconciled 16 P.S. § 1236.1 with 16 P.S. § 1251. First, the Johnstown Tribune Court determined that autopsy reports were not part of the "official record and papers" under 1251 in part because "no one would pay... [the fee set forth in § 1236.1]... to a coroner if the autopsy report was already available at the prothonotary's office." 871 AN at 329. The Court reasoned that such an interpretation would render 16 P. S. § 1236.1(c) meaningless. 8 The Penn Jersey Court interpreted Autopsy Reports as part of the "official records and papers" that must be filed with the prothonotary under 16 P.S. § 1251, noting, however, that such a result did not conflict with 16 P.S. § 1236.1(c) because § 1236.1 "provides a rapid means of procuring an autopsy report for those who do not wish to wait till after the end of the year, and who are also willing to pay the charges associated with procuring it." Here, the Citizen, via the RTKL, seeks Manner and Cause of Death Records, information contained within the official Records and. Papers, prior to the expiration of the statutory period set forth in 16 P.S. § 1251. She also seeks such records outside the discretionary release procedures set forth in 16 P.S. § 1236.1(c). While the Coroner has the discretion to release the Manner and Cause of Death Record to Citizen immediately, he is not required to do so. The Manner and Cause of Death Record sought by the Citizen will be available under the RTKL with 30 days after the end of the current year, from the Prothonotary of Cumberland County. CONCLUSYON For the foregoing reasons, we affirm the Final Determination. This Determination upon Petition for Reconsideration is binding on the parties. Within thirty (30) days of the mailing date of this Determination, either. party may appeal to the Court of Common Pleas Court of Cumberland County. All parties must be served with notice of the appeal. The Office of Open Records also shall be served notice and have an opportunity to respond according to court rules. 65 P.S. §67.1301. The parties are further 9 advised that a copy of this Final Determination will appear on the Office of Open Records website, htta'//onenrecords state.pa.us DETERMINATION ISSUED July 24, 2009 APPEALS OFFICER CORINNA VECSEY WILSON, ESQUIRE 10 OF r r f , %1AY 2009 AUG 24 P 3: 42 ? NT ?fA Sheriffs Office of Cumberland County R Thomas Kline FILE'-')'- Sheriff ?ptw of cullibrr1 < OF Ronny R Anderson 44 ? '? TY 2099 AUG 31 0111: 51 Chief Deputy r Jody S Smith CLRV -DL Civil Process Sergeant QFTtC:E r rat: SKRIFF Edward L Schorpp Solicitor Hearst Television, Inc. Case Number vs. 2009-5832 Coroner of Cumberland County SHERIFF'S RETURN OF SERVICE 08/26/2009 02:43 PM - Mark Conklin, Deputy Sheriff, who being duly sworn according to law, states that on August 26, 2009 at 1443 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Coroner of Cumberland County, by making known unto Michael Norris, at 6375 Basehore Road, Suite 1 Mechanicsburg, Cumberland County, Pennsylvania 17050 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $37.44 August 27, 2009 SO ANSWERS, R THOMAS KLINE, SHERIFF Deputy Sh4 iff IN THE MATTER OF HEARST TELEVISION, INC., d/b/a WGAL- TV and DANIEL O'DONNELL, Plaintiffs VS. MICHAEL L. NORRIS, in his official capacity as CORONER OF CUMBERLAND COUNTY, and THE PENNSYLVANIA OFFICE OF OPEN RECORDS, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-5832 CIVIL TERM CIVIL ACTION NOTICE TO PLEAD TO NEW MATTER OF DEFENDANT MICHAEL L. NORRIS, CORONER TO: Hearst Television, Inc., d/b/a WGAL-TV, and Daniel O'Donnell You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a judgment may be entered agai t yo Date: September 15, 2009 Marlin R. cCaleb Attorney I.D. No. 06353 219 East Main Street P.O. Box 230 Mechanicsburg, Pennsylvania 17055 (717) 691-7770 FAX: (717) 691-7772 Solicitor for Michael L. Norris, Coroner LAW OFFICES MARLIN R. McCALEB IN THE MATTER OF HEARST TELEVISION, INC., d/b/a WGAL- TV and DANIEL O'DONNELL, Plaintiffs VS. MICHAEL L. NORRIS, in his official capacity as CORONER OF CUMBERLAND COUNTY, and THE PENNSYLVANIA OFFICE OF OPEN RECORDS, Defendants : CIVIL ACTION ANSWER AND NEW MATTER OF DEFENDANT MICHAEL L. NORRIS CORONER : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-5832 CIVIL TERM ANSWER Defendant, Michael L. Norris, Coroner, by and through his attorney, Marlin R. McCaleb, Esquire, hereby makes the following Answer to Plaintiffs' Complaint: 1. Admitted. 2. Admitted. PARTIES, JURISDICTION AND VENUE 3. Admitted as to the first two sentences of Paragraph 3. After reasonable investigation, Defendant Norris is without knowledge or information sufficient to form a belief as to the truth of the averments of the third sentence of Paragraph 3 and, to the extent said averments are relevant to this cause of action, the same are deemed denied and proof thereof is demanded. 4. Admitted. LAW OFFICES MARLIN R. McCALEB 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted. 11. Admitted. FACTS I LAW OFFICES MARLIN R. McCALEB Plaintiffs' Right-to-Know Law Request 12. Admitted. 13. Admitted. 14. Admitted. 15. Admitted. 16. After reasonable investigation, Defendant Norris is without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 16 and, to the extent such averments are relevant to this cause of action, the same are deemed denied and proof thereof is demanded. 17. Admitted as to the first and third sentences of Paragraph 17. The averments of the second sentence of Paragraph 17 are specifically denied because the Office of Open Records correctly applied the law. Plaintiffs' Petition for Reconsideration 18. Admitted. 19. Admitted. 20. Admitted. -2- CAUSE OF ACTION 23. Defendant Norris hereby adopts and incorporates herein by reference thereto the averments of Paragraphs 1 through 22, above. 24. Admitted. 25. Admitted as to the first two sentences of Paragraph 25. The averment of the third sentence of Paragraph 25 sets forth a legal conclusion to which no responsive pleading is required. 26. Specifically denied. Section 1251 of the Coroner's Act (16 P.S. § 1251), through Section 3101.1 of the RTKL (65 P.S. § 67.3101.1), protects the information requested from disclosure at this time, for the reasons set forth in Paragraphs 35 and 36 of Defendant's New Matter, below, the averments of which are incorporated herein and made a part hereof by reference thereto. 27. Specifically denied. Section 1251 of the Coroner's Act (16 P.S. § 1251) conflicts with the RTKL to the extent that the RTKL would require immediate disclosure, for the reasons set forth in Paragraphs 35 and 36 of Defendant's New Matter, below, the averments of which are incorporated herein and made a part hereof by reference thereto. 28. After reasonable investigation, Defendant Norris is without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 28 and the same are LAW OFFICES MARLIN R. McCALEB -3- a part hereof by reference thereto. 28. After reasonable investigation, Defendant Norris is without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 28 and the same are deemed denied and proof thereof is demanded. In addition, said averments set forth legal conclusions to which no responsive pleading is required. 29. After reasonable investigation, Defendant Norris is without knowledge or information sufficient to form a belief as to the truth of the averment that the information and records requested are of significant interest to the general public and the same is deemed denied and proof thereof is demanded. The averment that Defendants lack a reasonable basis in law for withholding the records is specifically denied for the reasons set forth in Defendant's New Matter, below, the averments of which are incorporated herein and made a part hereof by reference thereto. 30. Admitted, to the extent that Plaintiffs seek immediate release of the information. 31. Specifically denied as stated. Plaintiffs can obtain the information requested when Defendant Norris files his official records for 2009 in January, 2010, as required by Section 1251 of the Coroner's Act (16 P.S. § 1251). 32. The averments of Paragraph 32 set forth legal LAW OFFICES MARLIN R. McCALEB conclusions to which no responsive pleading is required. -4- WHEREFORE, Defendant Norris respectfully requests that your Honorable Court enter judgment in his favor and against the Plaintiffs and award him reasonable attorney fees and costs of litigation pursuant to Section 1304(b) of the RTKL (65 P.S. § 67. 1304 (b) ) . NEW MATTER Defendant Norris sets forth the following New Matter: 33. Defendant Norris hereby adopts and incorporates herein by reference thereto the averments of Paragraphs 1 through 32, inclusive, above. 34. Defendant Norris believes and therefore avers that "manner of death" is an opinion or conclusion of the coroner resulting from his investigation and, as a mental process, is not itself a record subject to the RTKL. 35. Any records setting forth the manner of death are part of the coroner's official records that he is required to file pursuant to Section 1251 of the Coroner's Act (16 P.S. § 1251) . 36. Prior to the filing of his official records as set forth in Paragraph 35, above, the release of any information contained in said records is at the coroner's discretion. WHEREFORE, Defendant Norris respectfully requests that your Honorable Court enter judgment in his favor and against the Plaintiffs and award him reasonable attorney fees and costs LAW OFFICES MARLIN R. McCALEB -5- LAW OFFICES MARLIN R. McCALEB of litigation pursuant to Section 1304(b) of the RTKL (65 P.S. § 67. 1304 (b) ) . Res/fitfully s?itt Marlin R. McCaleb Attorney I.D. No. 06353 219 East Main Street P.O. Box 230 Mechanicsburg, Pennsylvania 17055 (717) 691-7770 FAX: (717) 691-7772 Solicitor for Michael L. Norris, Coroner -6- VERIFICATION MICHAEL L. NORRIS, Coroner of Cumberland County, Pennsylvania, hereby states that he is a Defendant in this action and that the statements made in this Answer are true and correct to the best of his knowledge, information and belief. The undersigned understands that false statements herein are made subject to the penalties of 18 Pa.C.S., Section 4904, relating to unsworn falsification. Date: September 15 2009 -"OIJJ4? ich el L. Norris Coroner LAW OFFICES MARLIN R. McCALEB -7- CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Answer and New Matter of Defendant Michael L. Norris, Coroner, was served upon the other parties in interest herein or their attorneys, on September , 2009, by depositing same in the mail at the United States Post Office at Mechanicsburg, Pennsylvania, postage prepaid, properly addressed as follows: Gayle C. Sproul, Esquire Levine Sullivan Koch & Schulz, L.L.P. 2112 Walnut Street, Third Floor Philadelphia, PA 19103 Attorneys for Plaintiffs Corinna Vecsey Wilson, Esquire Appeals Officer Pennsylvania Office of Open Records Commonwealth Keystone Building 400 North Street, Fourth Floor Harrisburg, PA 17120-0225 Marli R. McCaleb LAW OFFICES MARLIN R. McCALEB -8- OF THE Pr'`-;_;' T,Qy 2009 SEt 1 5 PI l: 13 LEVINE SULLIVAN KOCH & SCHULZ, L.L.P Gayle C. Sproul, ID No. 38833 Michael Berry, ID No. 86351 2112 Walnut Street, Third Floor Philadelphia, PA 19103 Tel: (215) 988-9782 Fax: (215) 988-9750 Attorneys for Plaintiffs Hearst Television, Inc., d/b/a WGAL-TV, and Daniel O'Donnell NOT AN ARBITRATION CASE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION IN THE MATTER OF HEARST TELEVISION, INC., d/b/a WGAL-TV, and DANIEL O'DONNELL, Plaintiffs, -against- No. 09-5832 Civil Term MICHAEL L. NORRIS, in his official capacity as CORONER OF CUMBERLAND COUNTY, and THE PENNSYLVANIA OFFICE OF OPEN RECORDS, Defendants. REPLY TO NEW MATTER Plaintiffs Hearst Television, Inc., d/b/a WGAL-TV, and Daniel O'Donnell (together, "Plaintiffs"), by and through their undersigned counsel, reply to the Answer and New Matter of Defendant Michael L. Norris, Coroner (the "New Matter") as follows: 33. Plaintiffs hereby incorporate by reference the allegations contained in paragraphs 1 through 32 of the Complaint as if set forth fully herein. 34. The allegations in paragraph 34 of the New Matter purport to state legal conclusions to which no response is required. 35. The allegations in paragraph 35 of the New Matter purport to state legal conclusions to which no response is required. 36. The allegations in paragraph 36 of the New Matter purport to state legal conclusions to which no response is required. WHEREFORE, Plaintiffs respectfully request this Court to grant judgment: (a) Vacating, overruling, and prohibiting the enforcement of the Final OOR Determination; (b) Directing the County Coroner to provide Plaintiffs with immediate access to the information and records specified in the RTKL Request; (c) Awarding Plaintiffs their costs, disbursements and attorneys' fees pursuant to the RTKL, 65 Pa. C.S. § 67.1304; and (d) Awarding Plaintiffs such other and further relief as the Court deems just and proper. Dated: October 2, 2009 Res*ecqpy submitted, LEV?LLIVAN KOCH & SCHULZ, L.L.P. Gayle Sproul, ID No. 38833 Michael Berry, ID No. 86351 2112 Walnut Street, Third Floor Philadelphia, PA 19103 Tel: (215) 988-9778 Fax: (215) 988-9750 Attorneys for Plaintiffs Hearst Television, Inc., d/b/a WGAL-TV, and Daniel O'Donnell Of Counsel: Jonathan R. Donnellan Kristina E. Findikyan Stephen H. Yuhan HEARST CORPORATION 300 West 57th Street, 40th Floor New York, NY 10019 Tel: (212) 649-2020 2 CERTIFICATE OF SERVICE I, Michael Berry, hereby certify that on this 2d day of October, 2009, I caused to be served by Federal Express a true and correct copy of the foregoing Reply to New Matter upon the following counsel of record: Marlin R. McCaleb, Esq. 219 East Main Street P.O. Box 230 Mechanicsburg, PA 17055 Counsel for Michael L. Norris, Coroner Corinna Vescey Wilson, Esq. Chief Counsel Pennsylvania Office of Open Records Commonwealth Keystone Building 400 North Street, Fourth Floor Harrisburg, PA 17120 Counsel for PennsylvanL Office of Open Records ?J Berry F 4D43 IC OF THE PPCMHONOTARt 1009 OCT -5 AM 9: 29 PENNSYt,1/t- NIA IN THE MATTER OF HEARST : IN THE COURT OF COMMON PLEAS OF TELEVISION, INC., d/b/a WGAL- : CUMBERLAND COUNTY, PENNSYLVANIA TV and DANIEL O'DONNELL, Plaintiffs VS. MICHAEL L. NORRIS, in his NO. 09-5832 CIVIL TERM official capacity as CORONER OF CUMBERLAND COUNTY, and THE PENNSYLVANIA OFFICE OF OPEN RECORDS, Defendants CIVIL ACTION PETITION TO ESTABLISH PROCEDURE The undersigned counsel for Plaintiffs and Defendant, Michael L. Norris, Coroner, respectfully stipulate and agree to the procedure to be used to resolve this matter and in support thereof they aver the following: 1. Plaintiffs herein are Hearst Television, Inc., d/b/a WGAL-TV ("WGAL") and Daniel O'Donnell, a WGAL employee. 2. Defendant Michael L. Norris ("Norris") is the Coroner I LAW OFFICES MARLIN R. McCALEB of Cumberland County, Pennsylvania, and as such he is a local agency subject to the Pennsylvania Right-to-Know Law ("RTKL") (65 P.S. 67.101 et seq.). 3. Defendant Pennsylvania Office of Open Records ("OOR") is the agency responsible for the administration and enforcement of the RTKL. 4. On April 23, 2009, Defendant Norris denied Plaintiffs' request for "the manner of death" of Thomas Rainey, who was found dead in Cumberland County, Pennsylvania, on April 16, 2009 (Complaint, Exhibits Nos. 1 and 2). 5. On May 27, 2009, Defendant OOR affirmed Defendant Norris, denial of that request (Complaint, Exhibits Nos. 3 and 4) . 6. On June 24, 2009, Plaintiffs requested that Defendant OOR reconsider its affirmation of Defendant Norris, denial of the request (Complaint, Exhibits Nos. 5,6,7 and 8). 7. On July 24, 2009, Defendant OOR again affirmed Defendant Norris, denial of the request (Complaint, Exhibit No. 9) . 8. Plaintiffs appealed from the second affirmation by filing a Complaint to the above term and number on August 24, 2009. 9. Defendant Norris responded to the Complaint with an Answer and New Matter filed on September 15, 2009, to which Plaintiffs filed a Reply to New Matter on October 5, 2009. 10. Defendant OOR has not responded to the Complaint and has indicated to the undersigned that it will not actively participate in or defend this appeal (see Exhibit "A" attached hereto and made a part hereof by reference). 11. Section 1302(a) of the RTKL (65 P.S. 67.1302(a)) provides that an appeal from the decision of the OOR shall be by petition for review or other form required by rule of court to the court of common pleas for the county in which the local agency is located; there is no Cumberland County rule prescribing the form for such appeal. LAW OFFICES MARLIN R. McCALEB -2- 12. Section 1303(b) of the RTKL (65 P. S. 67.1303(b)) states that the record before the court shall consist of the request, the agency's response, the appeal to OOR, the hearing transcript (if any), and the final determination of the appeals officer. 13. The record as described in Paragraph 12, above, is contained in Plaintiffs' Complaint and all Exhibits thereto; there was no hearing before the Defendant OOR and hence there is no hearing transcript. 14. The issues raised in this appeal are legal rather than factual in nature and can be resolved on the basis of the record described in Paragraphs 12 and 13, above, supplemented by the facts admitted in the pleadings described in Paragraphs 8 and 9, above. 15. The undersigned counsel for Plaintiffs and Defendant Norris hereby stipulate and agree that Plaintiffs' Complaint should be treated as a Petition for Review pursuant to Section 1302(a) of the RTKL (65 P. S. 67.1302(a)), to be heard and decided under Pa.R.C.P. 206.7 and C.C.R.P. 206.4(c) as if a Rule to Show Cause had been issued. 16. The undersigned counsel for Plaintiffs and Defendant Norris further stipulate and agree that for the reasons set forth in Paragraph 14, above, there is no need for depositions herein, so that Your Honorable Court can set a date and time for Argument and can establish a briefing schedule. 17. No Judge has had any prior involvement in this matter. LAW OFFICES MARLIN R. McCALEB -3- WHEREFORE, the undersigned counsel for Plaintiffs and (Defendant Norris respectfully request your Honorable Court to approve their stipulation and agreement herein and adopt the procedure they have agreed to, to set a date and time for Argument and to establish a briefing schedule. Respectfully submitted, LEVINE SULLIVAN KOCH & SCHULZ, L.L.P. Gayle C. Sproul, ID No. 38833 Michael Berry, ID No. 86351 2112 Walnut Street, Third Floor Philadelphia, PA 19103 (215) 988-9778 FAX: (215) 988 9750 Attorneys for Plaintiffs Marlin R. McCaleb Attorney I.D. No. 06353 219 East Main Street P.O. Box 230 Mechanicsburg, Pennsylvania 17055 (717) 691-7770 FAX: (717) 691-7772 Attorney for Defendant Norris LAW OFFICES MARLIN R. McCALEB -4- VERIFICATION MARLIN R. McCALEB hereby states that he is the attorney for the Defendant, Michael L. Norris, in this action; that he makes this verification as such attorney having personal knowledge of the facts; and that the statements made in this Petition are true and correct to the best of his knowledge, information and belief. The undersigned understands that false statements herein are made subject to the penalties of 18 Pa.C.S., Section 4904, relating to unsworn falsification. ,2 Date: 2009 12501 ?' arlin R. McCaleb LAW OFFICES MARLIN R. McCALEB -5- CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Petition was served upon the other party in interest herein on /y?r??y ?•- T , 2009, by depositing same in the mail at the United States Post Office at Mechanicsburg, Pennsylvania, postage prepaid, properly addressed as follows: Corinna V. Wilson, Esquire Appeals Officer Pennsylvania Office of Open Records Commonwealth Keystone Building 400 North Street, Fourth Floor Harrisburg, PA 17120-0225 Marlin R. McCaleb LAW OFFICES MARLIN R. McCALEB -6- l? pennsylvania OFFICE OF OPEN RECORDS October 27, 2009 Marlin McCaleb, Esq. 219 East Main Street Mechanicsburg, PA 17055 RE: In the Matter of Hearst Television, Inc., d/b/a WGAL-TV and Daniel O'Donnell, Court of Common Pleas, Cumber land County, Docket No. 09- 5832, Civil Term Dear Mr. McCaleb: I am writing in connection with the above referenced matter, which is a Petition for Review filed by WGAL in the Court of Common Pleas of the Determination Upon Petition for Reconsideration issued on July 24, 2009 by the Office of Open Records (OOR) (OOR Dkt. AP 21009-0337.) The OOR has the discretion under the Right-to-Know Law ("RTKL") 65 P.S. § 1303(a) to respond in actions to review the final determinations of the OOR. Specifically, the RTKL provides that "An agency, the requester and the Office of Open Records or designated appeals officer shall be served notice of actions commenced in accordance with section 1301 or 1302 and shall have an opportunity to respond in accordance with court rules." The OOR respectfully declines to participate in this case. We maintain that our determination in this matter asserts the legal issues clearly, and compiled a record sufficient to determine all relevant findings of fact. As you know, the OOR is the administrative agency charged with interpretation of the RTKL and is the exclusive agency of first impression for all appeals from denials of requests under the RTKL. Since the OOR declines to participate in this case as permitted in its discretion, the OOR rests upon its Determination Upon Petition for Reconsideration and shall not be submitting a separate brief. Very truly yours, Corinna V. Wilson Chief Counsel cc: Gayle Sproul, Esq. Commonwealth Keystone Building 1 400 North Street, 4th Floor Harrisburg, Pennsylvania 17120-0225 (717)346-9903 1 (717) 425-5343 (Fax) http;//openrccords.statc.pa.us Exhibit "A" F T RLEDWIGE- 2009 NOY -9 p- I : v Er r IN THE MATTER OF HEARST . IN THE COURT OF COMMON PLEAS OF TELEVISION, INC., d/b/a WGAL- CUMBERLAND COUNTY, PENNSYLVANIA TV and DANIEL O'DONNELL, Plaintiffs NOV 10 Zou VS. MICHAEL L. NORRIS, in his NO. 09-5832 CIVIL TERM official capacity as CORONER OF CUMBERLAND COUNTY, and THE PENNSYLVANIA OFFICE OF OPEN RECORDS, Defendants CIVIL ACTION ORDER OF COURT AND NOW, this (2- day of , 0?4? , 2009, upon consideration of the within Petition to Establish Procedure, it is ordered that: 1. The stipulation and agreement of counsel for the Plaintiffs and counsel for the Defendant Michael L. Norris is approved; 2. Plaintiffs' Complaint shall be deemed a Petition for Review under Section 1302(a) of the Pennsylvania Right-To-Know Law (65 P. S. 67.1302(a)) and the case shall proceed as if a Rule To Show Cause had been issued upon the Defendants herein; 3. The Petition for Review shall be decided pursuant to LAW OFFICES MARLIN R. McCALEB Pa.R.C.P. 206.7 and C.C.R.P. 206.4(c); 4. Argument shall be held on , 20u 1ly, at o'clock, ., prevailing time, in Courtroom No. Cumberland County Courthouse, Carlisle, Pennsylvania. ,k? ,+,, v kcac ` VUL tovt-i Ih CA CA107 k0410 k f--1 BY THFl LOUR J. LAW OFFICES MARLIN R. McCALEB -2- t ?? it ? ? 2?'.I? ??`d 12 ??1 tL? ? ?? p ? ?t r ?a? n?. ???ld ? ?? ? . ?a Z?-o? V. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION IN THE MATTER OF HEARST TELEVISION, INC., d/b/a WGAL-TV, and DANIEL O'DONNELL, Plaintiffs, -against- MICHAEL L. NORRIS, in his official capacity as CORONER OF CUMBERLAND COUNTY, and THE PENNSYLVANIA OFFICE OF OPEN RECORDS, Defendants. No. 09-5832 Civil Term Plaintiffs Hearst Television, Inc., d/b/a WGAL-TV, and Daniel O'Donnell and Defendant Michael L. Norris, in his official capacity as Coroner of Cumberland County, by and through their undersigned counsel, hereby stipulate and agree as follows: 1. Plaintiffs are filing a Motion for the admission of Stephen H. Yuhan, Esq., counsel to the Hearst Corporation, pro hac vice in this matter. Plaintiffs' attorney, Michael Berry, Esq., is submitting the Motion and sponsoring Mr. Yuhan's admission. Defendant has consented to the Motion and to Mr. Yuhan's admission pro hac vice. 2. Mr. Yuhan may appear and argue on Plaintiff's behalf at the December 1, 2009 argument in the above-referenced matter. Mr. Berry is excused from attending the December 1 argument and need not attend the proceedings that day. 3. This Stipulation may be executed and delivered in two or more counterparts, each of which, including but not limited to pages transmitted by facsimile and email, when so executed and delivered, shall be deemed to be an original. '. 11123/2009 09:17 7176917772 MARLIN R MCCALEB PAGE 03 11120/2009 16:00 21.2362 Dawd, Novambeu23.2009 LEVINE &-L7,, AN KOCH & SC .L.P. Mlcl Barry " 2112 W.Alnut Street, Third Fluor Philadelphia, Pennsylvania 19103 Tel: (215) 988-9778 Fax: (215) 986.9750 Atrorney.c f r Plaintiffs Hearst Television, Inc, d/U WGAL-7TV LAW OFFICES OF MAW,W R. Me I'Es "'Al !Z1 ?10 By: WAW KA- - k r in K. McCeleb 219 East Main Street P.O. Box 230 Mechanicsburg, PA 17055 Tel: (717) 691-7770 Fare: ('717) 691-7772 Anorney for Defendant Michael L. Norris, in his oficial capad V as Coroner of Cumborland County SO ORDERED: EDGAR B. BAYLEY PRESIDENT 3UDQF- LEVINE SULLIVAN KOCH & SCHULZ, L.L.P. NOT AN ARBITRATION CASE Gayle C. Sproul, ID No. 38833 Michael Berry, ID No. 86351 2112 Walnut Street, Third Floor Philadelphia, PA 19103 Tel: (215) 988-9782 Fax: (215) 988-9750 Attorneys for Plaintiffs Hearst Television, Inc., d/b/a WGAL-TV, and Daniel O'Donnell COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION IN THE MATTER OF HEARST TELEVISION, INC., d/b/a WGAL-TV, and DANIEL O'DONNELL, Plaintiffs, -against- MICHAEL L. NORRIS, in his official capacity as CORONER OF CUMBERLAND COUNTY, and THE PENNSYLVANIA OFFICE OF OPEN RECORDS, Defendants. No. 09-5832 Civil Term PLAINTIFFS' MOTION FOR ADMISSION OF STEPHEN H. YUHAN, ESQ. PRO HAC VICE Plaintiffs Hearst Television, Inc., d/b/a WGAL-TV, and Daniel O'Donnell, by and through their undersigned counsel, hereby move pursuant to Rule 1012.1 of the Pennsylvania Rules of Civil Procedure for the admission of Stephen H. Yuhan, Esq., pro hac vice and aver as follows in support thereof: Mr. Yuhan serves as counsel to the Hearst Corporation, where he advises its reporters on freedom of information requests, as well as other matters pertaining to newsgathering and publishing. He is a member in good standing of the bars of the State of New York and the United States District Court for the Southern District of New York. 2. Mr. Yuhan is serving as of counsel in this matter on behalf of Plaintiffs. Mr. Yuhan is intimately familiar with the facts and law underlying plaintiffs' Right to Know Law request, the Office of Open Records' ruling on its appeal, and the complaint they filed appealing from that ruling. His admission pro hac vice therefore will materially advance the conduct of this matter. 3. Pursuant to Rule 1012.1(c), Mr. Yuhan's Affirmation in support of this Motion is attached hereto as Exhibit 1. 4. The undersigned attorney, Michael Berry, Esq., is sponsoring Mr. Yuhan's application for pro hac vice admission. Pursuant to Rule 1012.1(d)(2), Mr. Berry's Affirmation in support of this Motion is attached hereto as Exhibit 2. 5. Mr. Yuhan's admission pro hac vice will prejudice no one, and there is not good cause for denying this Motion. Indeed, counsel for each of the defendants has consented to this Motion and to Mr. Yuhan's admission pro hac vice. 6. The parties filed a joint Petition to Establish Procedure in this matter on November 9, 2009, and President Judge Bayley entered an Order granting the Petition on November 12, 2009. WHEREFORE, Plaintiffs respectfully request that the Court grant their motion and admit Mr. Yuhan pro hac vice in the above-captioned matter. Dated: November 23, 2009 LEVINN K H & SCHULZ, L.L.P. / +D'r IVA Gayle Coul, ID No. 38833 Michael Berry, ID No. 86351 2112 Walnut Street, Third Floor Philadelphia, PA 19103 Tel: (215) 988-9778 Fax: (215) 988-9750 Attorneys for Plaintiffs Hearst Television, Inc., d/b/a WGAL-TV, and Daniel O'Donnell Of Counsel: Jonathan R. Donnellan Kristina E. Findikyan Stephen H. Yuhan HEARST CORPORATION 300 West 57th Street, 40th Floor New York, NY 10019 Tel: (212) 649-2020 CERTIFICATE OF SERVICE I, Michael Berry, hereby certify that on this 23d day of November, 2009, I caused to be served by Federal Express a true and correct copy of the foregoing Motion for Pro Hac Vice upon the following counsel of record: Marlin R. McCaleb, Esq. 219 East Main Street P.O. Box 230 Mechanicsburg, PA 17055 Counsel for Michael L. Norris, Coroner Corinna Vescey Wilson, Esq. Chief Counsel Pennsylvania Office of Open Records Commonwealth Keystone Building 400 North Street, Fourth Floor Harrisburg, PA 17120 Counsel for Pennsylvania?Of face of Open Records LEVINE SULLIVAN KOCH & SCHULZ, L.L.P. NOT AN ARBITRATION CASE Gayle C. Sproul, ID No. 38833 Michael Berry, ID No. 86351 2112 Walnut Street, Third Floor Philadelphia, PA 19103 Tel: (215) 988-9782 Fax: (215) 988-9750 Attorneys for Plaintiffs Hearst Television, Inc., d/b/a WGAL-TV, and Daniel O'Donnell COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION IN THE MATTER OF HEARST TELEVISION, INC., d/b/a WGAL-TV, and DANIEL O'DONNELL, Plaintiffs, -against- MICHAEL L. NORRIS, in his official capacity as CORONER OF CUMBERLAND COUNTY, and THE PENNSYLVANIA OFFICE OF OPEN RECORDS, Defendants. No. 09-5832 Civil Term AFFIRMATION OF STEPHEN H. YUHAN IN SUPPORT OF MOTION FOR ADMISSION PRO HAC VICE I, Stephen H. Yuhan, Esq., hereby affirm, under penalty of perjury, as follows: 1. I submit this Affirmation in support of the Motion of Plaintiffs for an Order permitting me to appear and participate in the above-captioned matter pro hac vice pursuant to Rule 1012.1 of the Pennsylvania Rules of Civil Procedure. 2. I am counsel to the Hearst Corporation, having offices at 300 West 57th Street, 40th Floor, New York, New York 10019-3792. 3. The jurisdictions in which I have been licensed are as follows: a. State of New York, First Department (admitted October 31, 2005); and b. United States District Court for the Southern District of New York (admitted January 10, 2006). 4. I have never been suspended, disbarred, or otherwise disciplined by a court. I am not subject to disciplinary proceedings in any jurisdiction. 6. I have not applied for admission pro hac vice in any other actions pending in any courts of record in Pennsylvania. 7. If admitted to practice before this Court pro hac vice, I will comply with and be bound by the applicable statutes, case law and procedural rules of the Commonwealth of Pennsylvania, including the Pennsylvania Rules of Professional Conduct. 8. If admitted to practice before this Court pro hac vice, I agree to submit to the jurisdiction of the Pennsylvania courts and the Pennsylvania Disciplinary Board with respect to acts and omissions occurring during my appearance in this matter. 9. I have consented to the appointment of the following person as the agent upon whom service of process shall be made for all actions, including disciplinary actions, that may arise out of the practice of law in this matter: Michael Berry, ID No. 86351 Levine Sullivan Koch & Schulz, L.L.P. 2112 Walnut Street, Third Floor Philadelphia, PA 19103 Tel: (215) 988-9778 Fax: (215) 988-9750 2 10. Pursuant to 204 Pa. Code 51.050(b) and Rule 301 of the Pennsylvania Bar Admission Rules, I aver that payment of the required pro hac vice admission fee has been made to the Pennsylvania IOLTA Board. See Exhibit A. This Affirmation is made subject to the penalties of 18 Pa. Cons. Stat. § 4904 relating to unsworn falsifications b Dated: November 20, 2009 H E A R S T Corporation Stephen H Yuhan Counsel November 19, 2009 VIA FEDERAL EXPRESS PA IOLTA Board Office Of 115 State Street General Counsel Harrisburg, PA 17101 Eve Burton Vice President and RE: Hearst Television, Inc. et al. v. Norris, et al. General Counsel Jonathan R Donnellan Christopher A Fraser To Whom It May Concern: Larry M bosh MarkC Redman Please find enclosed a complete Pro Hac Vice Admission form and a Calvin Siemer vi S emerer check in the amount of $100.00 for admission in the above reference matter. Debra 'X, Senior counsel Sincerely, Lisa Antonini [?. ?? David Burgau """? Carolene S Eaddy Stephen Yuha , Esq. Krirtina E Findikyan Bridgeue Fitzpatrick Carl G Guida Audra Kujawrki Hart RobertJHawley Alan E Lewis Kevin) McCauley Aimee Nisbet Kenn) Packman Peter P Rahbar Eva M Saketkoo Maureen Walsh Sheehan Jonathan Sirota Ravi V Sitwala Jack Spizz Stephen H Yuhan Counsel Catherine A Bostron Secretary Harvey L Lipton 300 West 57th Street Of Counsel New York, NY 100-79-3792 T era 649 20-11 F 646 280 2021 syuhanCd)hearst.c»m Page 1 of 1 Fran: Origin ID: QNYA (212) 649.2021 Stephen H. Yuhan, Esq. Hearst Corp. Legal Dept 300 West 57th Street 40th Floor New York, NY 10019 Fedba. D SHP T0: (717) 238.2001 PA IOLTA Board 115 State St Harrisburg, PA 17101 BILL SENDER Ship Date: 19NOV09 ActWgt 1.0 LB CAD: 8514842ANET9090 Account. S """"""""* (1116111NIIIEIIIIIIIIIIOA Ref # Invoice # PO# Dept # 7981 5356 8895 ZN MDTA FRI - 20NOV Al STANDARD OVERNIGHT 17101 PA-US MDT After printing this label: 1. Use the 'Print' button on this page to print your label to your laser or inkjet printer. 2. Fold the printed page along the horizontal line. 3. Place label in shipping pouch and affix it to your shipment so that the barcode portion of the label can be read and scanned. Warning: Use only the printed original label for shipping. Using a photocopy of this label for shipping purposes is fraudulent and could result in additional billing charges, along with the cancellation of your FedEx account number. Use of this system constitutes your agreement to the service conditions in the current FedEx Service Guide, available on fedex.com.FedEx will not be responsible for any claim in excess of $100 per package, whether the result of loss, damage, delay, non-delivery,misdelivery,or misinformation, unless you declare a higher value, pay an additional charge, document your actual loss and file a timely claim.Limitations found in the current FedEx Service Guide apply. Your right to recover from FedEx for any loss, including intrinsic valueof the package, loss of sales, income Interest, profit, attorney's fees, costs, and other forms of damage whether direct, Incidental,consequential, or special is limited to the greater of $100 or the authorized declared value. Recovery cannot exceed actual documented loss. Maximum for items of extraordinary value is $500, e.g. jewelry, precious metals, negotiable instruments and other items listed In our ServiceGuide. Written claims must be filed within strict time limits, see current FedEx Service Guide. httns://www.fedex.com/shi.nt)ine/htmi/en//PrintTFrame.html 11/19/2009 APPENDIX "A" PENNSYLVANIA IOLTA BOARD Form for PRO HAC VICE ADMISSION Use this form if you are an attorney who is qualified to practice in another state or in a foreign jurisdiction, is not admitted to practice law in Pennsylvania, and is seeking to be specially admitted to the Bar of the Commonwealth of Pennsylvania in order to appear before a Pennsylvania court in connection with a particular case. Filing this form and paying the fee is the mandatory first step in your request for permission to participate in proceedings in a Pennsylvania court. The next step is to file a motion in the Pennsylvania court before which you are seeking to appear. The motion must aver payment of the fee or be accompanied by the acknowledgment letter you will receive from the Board. The decision to grant or deny your admission is ultimately made by the court before which you are seeking to appear. Applicable regulations define a case as: a particular legal action, including appellate review of that action, maintained in a Pennsylvania Court of Common Pleas, the Pennsylvania Superior Court, the Pennsylvania Commonwealth Court, or the Supreme Court of Pennsylvania. The term "case" does not refer to an action maintained only in a special court. Each case is subject to the completion of a new form and fee. Appearance before a Pennsylvania court by a foreign attorney is deemed to commence with the attorney's first appearance in a Pennsylvania court with respect to a particular case, and shall continue until final determination of that case, including appellate review, or until issuance of an order permitting the foreign attorney to withdraw. It is not necessary to file this form or pay the fee in order to appear before a special court, as defined in applicable regulations. Carefully follow these instructions and complete this form. Keep a copy of your completed form for future reference, as you may be charged for any copies you request from the Board's file. No alterations may be made to the text or wording of this form. Before you file your form, verify that you have fully responded to all items and questions, leaving no blanks. If the item or question is inapplicable, write "N/A." Your form will not be considered filed if incomplete. If incomplete, it may be returned to you. Failure to provide any of the following information will result in an incomplete fonn: a) failure to provide any information required, including names, complete addresses, telephone numbers, or zip/postal codes; b) failure to answer any question; C) failure to send in the required fee; d) alteration of any language of the form; and e) failure to sign any document requiring your signature. Admission fees: Make your check, money order, or bank cashier's check payable in the full amount due to the PA IOLTA Board. The admission fee is One Hundred Dollars ($100). If you have any questions about the fee, please contact the PA IOLTA Board before submitting this fonn. Do not postdate your check. A form is not considered filed until all fees are received in the Board's office. If your check for fees is returned for insufficient funds or is otherwise dishonored by your bank, you will be assessed a returned check charge. All fees due after that time must be paid by bank cashier's check or money order. There is no refund of fees if you withdraw your application for pro hac vice admission or do not meet all requirements for admission. No fee is required if the applicant attorney is representing a person who has been granted in forma pauperis status. 2. Filing of Application: Mail or deliver your form and required fees to the Board as follows: Mailing Address: PA IOLTA Board P.O. Box 1025 Harrisburg, PA 17108-1025 Phone: (717) 238-2001 o Web address: E-mail Address: 4. Delivery Address: PA IOLTA Board 115 State Street Harrisburg, PA 17101 888-PA-IOLTA (724-6582) wv3w.paiolta.org paiolta@pacourts.us The Board will acknowledge receipt of your form and fee payment within three (3) working days of its receipt. The acknowledgment letter will serve as your proof of payment of the requisite fee and can be included with your written motion to the Court in Pennsylvania in which you are requesting permission to participate. If you do not receive such an acknowledgment by that time, please contact the Board's office. Case Number: List only one (1) case number per form, as this crucial information will be included on the acknowledgment letter. Pennsylvania Court of Record: List the Court in which the Motion for Admission Pro Hac Vice will be filed. 5. Certificate of Good Standing: Formal Certificates of Good Standing are not necessary. 6. Forms from the Board web page: If you are using an electronic version of this form, it is your responsibility to insure that it is printed with the same content and wording as the Board's printed version of this form. 7. Regulations: The Applicant should review Rule 301 of the Pennsylvania Bar Admission Rules as well as the regulations of the Pennsylvania Interest on Lawyers Trust Account Board for Pro Hac Vice Admission for further guidance. PENNSYLVANIA IOLTA BOARD Form for PRO HAC VICE ADMISSION (For all nonresident attorneys requesting permission to participate in proceedings in a Pennsylvania Court) Applicant [4l Mr. _..------- _..... _ ........ ....... . Stephen p....----------- __ H _ ..... ..........__..., ., ._,, . .... _........ ......,_.. Name: [0l Ms. 'Yuhan Middle _.. _...?asf _._ .. First Date of Birth: 04111/1980 ' Your Firm's Name & Mailing Address: (All correspondence will be mailed to this address.) . Hearst Corporation, Office of General Counsel Your Firm's Physical Address: M? Check here if same as above Street Address Ste. No. City State Zip Code _.... w .._... _..._ ....,_... _. ..._....._..., ... syuhan@hearst.com 212-6A9-2021 646-280-2021 Office Phone Office Fax Contact E-Mail Address Acknowledgment Letter should be faxed to: Stephen H. Yuhan 646 280-2021 Contact Name Contact Fax Name & Office Address of Attorney of Record in the Pennsylvania Proceeding who is filing the Motion for your admission Pro Hac Vice: . _.._ .._... , _ Michael Berry Levine Sullivan Koch & Schultz LLP „ Name Firm Name (if applicable) _ _...... ..... _ _..., 2112 Walnut Street 3d Floor Philadelphia PA 19103 Street Address/P.O. Box Ste. No. City State Zip Code 215 988-9773 215-988-9750 86351 Office Phone Office Fax PA I.D. Number Case Number: 09 5832 Case Name Hearst Television Inc et aE v Norris et al. Pennsylvania Court of Record: iCourt of Common Pleas, Cumberland County _...-... Address of Court: 1100 Claremont Road, Carlisle PA 17015 1. List all foreign, state and federal jurisdictions in which you have been qualified, licensed or admitted to practice law and are currently active and in good standing, the year of licensure, and your license or bar card numbers, if applicable. Use the Continuation Form if additional space is needed. Jurisdiction(s) Year(s) of Licensure(s) License Number(s) ?.._...._. _....._......... ..._........ .. 11.Y. (1st Dept) '2005 N/A S.D.N.Y. 2006 N/A T 2. If you have ever practiced law under another name, please state that name here. List also all jurisdictions in which you practiced law under that name, license number, and the time period involved. Use the Continuation Form if additional space is needed. Other Name(s) Jurisdiction(s) License Number(s) Time Period(s) 3. Are you familiar with the Pennsylvania Rules of Professional Conduct, Pennsylvania Rules of Disciplinary Enforcement, and the rules and court procedures of the court before which you seek to appear, and will you at all times abide by and comply with the same so long as such Pennsylvania proceeding is pending and you have not withdrawn as counsel therein? re) 0 Yes No I certify that the information provided on this form is true. If any statements are false, I realize I am subject to discipline by the Supreme Court of Pennsylvania. I hereby certify that I am enclosing the fee r fired by Rule 301 of the Pennsylvania Bar Admission Rules. I hereby agree that any action brought again by the Supreme Court of Pennsylvania or any of its boards or instr 'ties may be u ht in t Court of Common Pleas of Allegheny, Dauphin or Philadelphia unty, P s Iv ure of Pro Hac ice scant 11/18/2009 Date of Application HOME OFFICE A UNIT OF HFARST CORPORATION CHECK DATE: 11/19/2009 CHECK NUMBER: 880049771 VENDOR NUMBER 974647 VENDOR NAME: PA IOLTA BOARD OAA08 ATJOI A9 T33AT2 3TAT2 211 10M A9 M82IAAAH TO: SANDRA B EXT 2074 Page: I 0 LEVINE SULLIVAN KOCH & SCHULZ, L.L.P. NOT AN ARBITRATION CASE Gayle C. Sproul, ID No. 38833 Michael Berry, ID No. 86351 2112 Walnut Street, Third Floor Philadelphia, PA 19103 Tel: (215) 988-9782 Fax: (215) 988-9750 Attorneys for Plaintiffs Hearst Television, Inc., d/b/a WGAL-TV, and Daniel O'Donnell COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION IN THE MATTER OF HEARST TELEVISION, INC., d/b/a WGAL-TV, and DANIEL O'DONNELL, Plaintiffs, -against- MICHAEL L. NORRIS, in his official capacity as CORONER OF CUMBERLAND COUNTY, and THE PENNSYLVANIA OFFICE OF OPEN RECORDS, Defendants. No. 09-5832 Civil Term AFFIRMATION OF MICHAEL BERRY IN SUPPORT OF MOTION FOR ADMISSION PRO HAC VICE I, Michael Berry, Esq., hereby affirm, under penalty of perjury, as follows: 1. I submit this Affirmation in support of the Motion of Plaintiffs for an Order permitting Stephen H. Yuhan to appear and participate in the above-captioned matter pro hac vice pursuant to Rule 1012.1 of the Pennsylvania Rules of Civil Procedure. 2. I am an attorney in good standing of the Pennsylvania bar, am associated with Levine Sullivan Koch & Schulz, L.L.P., 2112 Walnut Street, Third Floor, Philadelphia, Pennsylvania, 19103, and serve as counsel to Plaintiffs Hearst Television, Inc., d/b/a WGAL-TV, and Daniel O'Donnell in this matter. 3. After reasonable investigation, I am in a position to recommend Mr. Yuhan's admission pro hac vice and believe Mr. Yuhan to be a reputable and competent attorney. 4. This matter is the only case in a court of record in this Commonwealth in which I am acting as a sponsor of a candidate for admission pro hac vice. 5. If Mr. Yuhan is granted admission pro hac vice, the proceeds of any settlement of this matter shall be received, held, distributed and accounted for in accordance with Rule 1.15 of the Pennsylvania Rules of Professional Conduct, including the IOLTA provisions thereof, if applicable. This Affirmation is made subject to the penalties of 18 Pa. Cons. Stat. § 4904 relating to unsworn falsifications to authorities Dated: November 23, 2009 2 Ff ..; r r OfF THu JTMv 2001 3U 24 FH -J: 20 C,V ;Iry Fl-s + +??+? 4YI?IS(i'? COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION IN THE MATTER OF HEARST TELEVISION, INC., d/b/a WGAL-TV, and DANIEL O'DONNELL, Plaintiffs, -against- MICHAEL L. NORRIS, in his official capacity as CORONER OF CUMBERLAND COUNTY, and THE PENNSYLVANIA OFFICE OF OPEN RECORDS, Defendants. No. 09-5832 Civil Term M " ORDER AND NOW, this ? flay of , 2009, upon consideration of the Plaintiffs' Motion for Admission of Stephen H. Yuhan, Esq. Pro Hac Vice, it is hereby ORDERED that the Motion is GRANTED and Mr. Yuhan is admitted pro hac vice in this matter pursuant to the terms of Rule 1012.1 of the Pennsylvania Rules of Civil Procedure and Rule 301 of the Pennsylvania Bar Admission Rules. BY THE EDGAR B -nATLEV PRESIDENT JUDGE -" FILED-0i ,?; OF THE R`= I NOTARY 2009 NOV 24 Phi 3: 20 Cum-kLL4?.' ' LII'?T i * X?w e,,, -/ 4 A""e. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION IN THE MATTER OF HEARST TELEVISION, INC., d/b/a WGAL-TV, and DANIEL O'DONNELL, Plaintiffs, -agamst- MICHAEL L. NORRIS, in his official capacity as CORONER OF CUMBERLAND COUNTY, and THE PENNSYLVANIA OFFICE OF OPEN RECORDS, Defendants. No. 09-5832 Civil Term Plaintiffs Hearst Television, Inc., d/b/a WGAL-TV, and Daniel O'Donnell and Defendant Michael L. Norris, in his official capacity as Coroner of Cumberland County, by and through their undersigned counsel, hereby stipulate and agree as follows: 1. Plaintiffs are filing a Motion for the admission of Stephen H. Yuhan, Esq., counsel to the Hearst Corporation, pro hac vice in this matter. Plaintiffs' attorney, Michael Berry, Esq., is submitting the Motion and sponsoring Mr. Yuhan's admission. Defendant has consented to the Motion and to Mr. Yuhan's admission pro hac vice. 2. Mr. Yuhan may appear and argue on Plaintiff's behalf at the December 1, 2009 argument in the above-referenced matter. Mr. Berry is excused from attending the December 1 argument and need not attend the proceedings that day. 3. This Stipulation may be executed and delivered in two or more counterparts, each of which, including but not limited to pages transmitted by facsimile and email, when so executed and delivered, shall be deemed to be an original. 1112312009 09:17 7176917772 MARLIN R MCCALEB ,,,PAGE 03 1.112012009 15:00 ;?12362 i~atcd: ?tic~vcmheK2/, 2409 LF~'Fi~E S Alti KC)C1I 8c SC Y~'L7., ~,.t,.p. Miic~€Ce1 Burry , 2112 ~'altrut Street, Third Flr~ar PhiladClphla, Pennsylvania 1.9103 Tel: (215'1988-9??8 Fft]c; (215) 988.9750 ~ftorne~fe.~r,r rlainfi,{fs Hearst 2"elevtsfon, Lr,W 4I' ICFS OF MA1tL~' R. Ntc I.~3 .' ~~: r in R.. McCalob 219 East Main Street P.o. aox 230 Mechanicsburg, PA 17455 Tcl: {717} 691-7770 1~ax: ("717) b41-7777 A.txorrr~yfor l~efendartt Mfcisaef L, Narris, in f~is o~cr.'al ccrpdcfty as Coroner flf Cumberland County 1 t ?~09 ~~y0'~' 3~? Fr I ~ t ! C~,, ~~ -, ,,ti~-.n~. ~~~~o~o~ - ~ iFs rn~ ~ ~~~ I ~ ~~ ~ ~ 3~~ IN THE COMMONWEALTH COURT OF PENNSYLVANIA o ~~ c-n ~ ~-~ r ; _j G t " Hearst Television, Inc., d/b/a 4 ~ 1 ~_ - : , WGAL-TV and Daniel O'Donnell, ~ 6' --- Appellants .~=- ,~ - v. ~ _ _ Michael L. Norris, in his ofFcial - O .l capacity as Coroner of Cumberland `~'~~ ~~ ~~ County and The Pennsylvania ` Office of Open Records No. 95 C.D. 2010 ORDER NOW, August 12, 2010, upon consideration of the motion for admission pro hac vice of Jonathan R. Donnellan and Stephen H. Yuhan on behalf of appellants, it is hereby ordered: (1) ]onathan R. Donnellan, Esq. and Stephen H. Yuhan, Esq. are admitted pro hac vice to the bar of the Commonwealth of Pennsylvania under Pennsylvania Bar Admission Rule 301, as co-counsel on behalf of appellants in this matter; (2) ]onathan R. Donnellan, Esq. and Stephen H. Yuhan, Esq. shall abide by the rules of this Court including all disciplinary rules; (3) Jonathan R. Donnellan, Esq. and Stephen H. Yuhan, Esq. shall immediately notify this Court of any matter affecting their standing at the bar of any other court where they may be admitted to practice; and (4) Michael Berry, Esq. the moving attorney herein, shall continue to be responsible as counsel of record for the conduct of this matter on behalf of the appellants. S[ w Bernard L. McGinley, Certified from the Record AUG 13 2010 And Order Exit Buell, David D. Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 AOPC 1231 Rev.08/13/2010 IN THE COMMONWEALTH COURT OF PENNSYLVANW., .... .-.fY e r[: 71. Hearst Television, Inc., d/b/a WGAL-TV and Daniel O'Donnell, Appellants - j CO 9 - S93 D- V. : No. 95 C.D. 2010 Michael L. Norris, in his official Argued: September 14, 2010 capacity as Coroner of Cumberland County and The Pennsylvania Office of Open Records . BEFORE: HONORABLE RENEE COHN KMELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION BY JUDGE COHN JUBELIRER FILED: November 16, 2010 Hearst Television, Inc., d/b/a WGAL-TV and Daniel O'Donnell (together, Requesters) appeal the December 23, 2009, Order of the Court of Common Pleas of Cumberland County (trial court) that upheld the decision of the Pennsylvania Office of Open Records (OOR), which denied Requesters' appeal from the denial of their Right-to-Know Request (Request) by Michael Norris, then Coroner of Cumberland County (the Coroner).' Through the Request, Requesters sought to ' On January 5, 2010, counsel for the Coroner filed a Suggestion of Succession, informing the trial court that the term of office of Michael L. Norris had expired and that he had been succeeded by Todd C. Eckenrode. The Suggestion of Succession requested that the caption be changed to reflect that the defendants are "Todd C. Eckenrode, Successor to Michael L. Norris, in his official capacity as Coroner of Cumberland County, and the Pennsylvania Office of obtain records from the Coroner setting forth the manner of death of a student at Shppensburg University. In this case, the parties agree that "manner of death" records are public records and must ultimately be disclosed to the public as a matter of law. However, the parties disagree as to when the Coroner must disclose these public records, and this is the issue presently before our Court. 1. Facts and Procedural Pasture The facts, as found by the trial court, are as follows. On April 16, 2009, a 19-year-old college student was found dead in his Shppensburg apartment and, subsequently, the Coroner investigated the death. Requesters sought the manner of death records of the student from the Coroner who, acting as the Agency Open Records Officer, denied the request. Relying on Section 1251 of the Act, commonly known as the "Coroner's Act,"2 the Coroner stated that "[a]ny information this office may have regarding the manner of death for any person who died in 2009 is not public record and would not become public under current law until 30 days after the end of the year. [16 P.S. §] 1251." (Letter from the Coroner to Requesters (April 23, 2009), R.R. at 4a) Pursuant to the Right-to-Know Law (RT,L),3 Requesters appealed to the OOR. On May 27, 2009, the OOR issued a Final Determination denying the appeal, concluding that "the requested record is a public record under the RTKL when it is deposited with the prothonotary's office as required by [Section 1251 of] the Coroner's Act. ... As such, the autopsy Open Records." However, the trial court did not change the caption prior to Requesters filing their Notice of Appeal. z Act of August 9, 1955, P.L. 323, 16 P.S. § 1251. 3 Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101- 67.3104. 2 report will be available 30 days after the end of 2009." (OOR Final Determination at 4, May 27, 2009, R.R. at 10a.) Requesters filed a motion for reconsideration to the OOR, which was granted. On July 24, 2009, the OOR issued a Determination Upon Petition for Reconsideration (Reconsideration Determination) affirming its Final Determination and concluding that immediate access to official records of the Coroner is not required under Section 708(b)(20) of the RTKL, 65 P.S. § 67.708(b)(20), which provides as follows: (b) Exceptions.--Except as provided in subsections (c) and (d), the following are exempt from access by a requester under this act: (20) An autopsy record of a coroner or medical examiner and any audiotape of a postmortem examination or autopsy, or a copy, reproduction or facsimile of an autopsy report, a photograph, negative or print, including a photograph or videotape of the body or any portion of the body of a deceased person at the scene of death or in the course of a postmortem examination or autopsy taken or made by or caused to be taken or made by the coroner or medical examiner. This exception shall not limit the reporting of the name of the deceased individual and the cause and manner of death. Id. (emphasis added). Relying on the Supreme Court's decision in Penn Jersey Advance, Inc. v. Grim, 599 Pa. 534, 962 A.2d 632 (2009), the OOR determined . that Section 708(b)(20) does not require immediate access to manner of death records because requiring immediate disclosure of such records would conflict with the Coroner's Act and, thus, violate Section 3101.1 of the RTKL, 65 P.S. § 67.3 (stating that the RTKL does not apply when it is in conflict with another state statute). (Reconsideration Determination at 7-8, R.R. at 37a-38a.) Requesters appealed to the trial court. 3 On December 23, 2009, the trial court issued the Order upholding the OOR's Final Determination that the manner of death records need not be immediately disclosed by the Coroner pursuant to Section 708(b)(20) of the RTKL. The trial court rejected Requesters' argument that the proviso in Section 708(b)(20), which states "[t]his exception shall not limit the reporting of the name of the deceased individual and the cause and manner of death," 65 P.S. § 67.708(b)(20), (the Proviso), is an exception to the autopsy records exemption that mares manner of death records immediately disclosable under the RTKL. The trial court held that because the General Assembly failed to adopt language that could have more clearly expressed a desire to make such records subject to immediate disclosure under the RTKL, the trial court was permitted to resort to statutory interpretation or look to the legislative history of the provision. The trial court examined the original bill of Section 708(b)(20) and the first amendment passed in the House of Representatives and noted that, initially, the Proviso specifically referenced the Coroner's Act.4 (Trial Ct. Op. at 7.) Therefore, the trial 4 Specifically, the trial court states as follows: The provision in the original bill was as follows: This exception shall not limit the 8 reporting of the name of the deceased individual, the cause 9 of death and whether the death was caused by criminal 10 activity or criminal negligence in accordance with section 11 1251 of the act of August 9, 1955 (P.L. 323, No. 130), known as 12 The County Code[, i.e., the Coroner's Act]. This following amendment was added in the House of Representatives: This exception shall not limit the 8 reporting of the name of the deceased individual; 4he4ouse 9 of death ead whethw the, death was 68HOW by er;n? 10 and the cause and manner of death to all persons interested therein in accordance with section 11 1251 of the act of August 9, 1955 (P.L. 323, No. 130), known as 4 court held that notwithstanding the fact that the final amendment in the Senate, which became law, "changed the last sentence slightly [by taking] out the specific reference to [the Coroner's Act]," the Proviso does not "mandate access by a requester to the reporting of the name of the deceased individual and the cause and manner of death; rather," the Proviso only "makes sense if it is a reference to not limiting information that a coroner may release under the Coroner's Act." (Trial Ct. Op. at 7-8.) Requesters now appeal to this Court.$ H. Discussion On appeal,6 Requesters contend that the manner of death records must be disclosed immediately, pursuant to the RTKL. The Coroner argues that these records are exempt from the RTKL's disclosure provisions under the autopsy 12 The County Code[, i.e., the Coroner's Act]. This final amendment, which became law, was added in the Senate: This exception shall not limit the 8 reporting of the name of the deceased individual and the cause and manner of death seetie 11 1 1251 of the ae4 of Au t 9, 11-55 (P I 323, Ne 130), kne%% " 12 The / eefi " G040. (Trial Ct. Op. at 6-7 (footnote omitted).) 5 Because there is no dispute as to the facts in this case, "our review is limited to determining whether the trial court abused its discretion, committed any error of law or violated any constitutional rights." SWB Yankees LLC v. Gretchen Wintermantel, 999 A.2d 672, 674 n.2 (Pa. Cmwlth. 2010). "The scope of review for a question of law under the [RTKL] is plenary." Id. (quoting Stein v. Plymouth Township, 994 A.2d 1179, 1181 n.4 (Pa. Cmwlth. 2010)). 6 There has been no argument that this issue is moot, and we agree with Requesters that this appeal remains properly before us. The issue raised is one of important public interest, and it is capable of repetition unless settled and apt to elude review. Commonwealth v. Dixon, 589 Pa. 28, 35-36, 907 A.2d 468, 472-73 (2006). 5 records exemption found in Section 708(bX20) of the RTKL and do not have to be disclosed until those records are required to be filed with the prothonotary, thirty days after the end of the calendar year, pursuant to Section 1251 of the Coroner's Act.' Each party also argues that it is entitled to costs and fees related to this appeal. We will address the issues in turn. A. Whether Miter of De Records are bmwediagdY DisclOsable Section 302(x) of the RTKL states that: "A local agency shall provide public records in accordance with this act." 65 P.S. § 67.302(a). Section 102 of the RTKL defines the term "public record" as including a local agency "record" that: "(1) is not exempt under section 708; (2) is not exempt from being disclosed under any other Federal or State law or regulation or judicial order or decree; or (3) is not protected by a privilege." 65 P.S. § 67.102. Section 102 also defines the term "record" as "[i]nformation, regardless of physical form or characteristics, that documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency." Id. Section 102 fiuther makes clear that the term "record" includes "a document, paper, letter, map, book, tape, photograph, film or sound recording, information stored or maintained electronically and a data-processed or image- processed document." Id. Moreover, Section 305(a) of the RTKL, 65 P.S. § 67.305(a), states that records possessed by local agencies are presumed to be public records, but that this "preswsnption shall not apply if. (1) the record is exempt under section 708; (2) the record is.. protected by a privilege; or (3) the 7 The Pennsylvania Coroner's Association (Amicus Curiae) has filed a brief expressing its support for the Coroner's position. 6 record is exempt from disclosure under any other Federal or State law, regulation or judicial order or decree." Id. Section 708(a)(1) of the RTKL provides that: "The burden of proving that a record of a ... local agency is exempt from public access shall be on the ... local agency receiving a request by a preponderance of the evidence." 65 P.S. § 67.708(a)(1). Section 708(b) sets forth numerous exemptions from public disclosure. At issue here is the autopsy exemption found at Section 708(b)(20) and, in particular, the Proviso within that exemption. In interpreting the meaning of the Proviso, this Court must also consider Sections 1251 and 1236.1 of the Coroner's Act, which provide as follows: § 1251. Official records of coroner Every coroner, within thirty (30) days after the end of each year, shall deposit all of his official records and papers for the preceding year in the office of the prothonotary for the inspection of all persons interested therein. § 1236.1. Requests for examinations and reports (a) Requests for examinations or other professional services by other counties or persons may be complied with at the discretion of the coroner pursuant to guidelines established by the county commissioners. (b) A set of fees and charges for such examinations or professional services shall be established by the coroner, subject to approval by the county commissioners, and shall be accounted for and paid to the county treasurer. . . . Payment for examinations or professional services shall be the responsibility of the county or person requesting such services. (c) The coroner may charge and collect a fee of up to one hundred dollars ($100) for each autopsy report, up to fifty dollars ($50) for each toxicology report, up to fifty dollars ($50) for each inquisition or coroner's report and such other fees as may be established from time to time for other reports and documents requested by nongovernmental agencies. The fees collected shall be accounted for 7 and paid to the county treasurer ... and shall be used to defray the expenses involved in the county complying with the provisions of the act of March 2, 1988 (P.L. 108, No. 22), referred to as the Coroners' Education Board Law. 16 P.S. §§ 1251, 1236.1 (emphasis added). Requesters argue that manner of death records are subject to immediate public disclosure under the Proviso, which provides that "[t]his exception shall not limit the reporting of... the cause and manner of death." 65 P.S. § 67.708(b)(20). Requesters contend that the Proviso contains no reference to Section 1251 of the Coroner's Act and that by removing any reference to that section in the final version of the law, the General Assembly intended to require manner of death records to be made public upon request, consistent with the RTKL's mandate and in contrast to autopsy reports, which are dealt with in the sentence preceding the Proviso. In essence, Requesters argue that the Proviso is an exception within the autopsy record exemption. Additionally, Requesters contend that there is no conflict between any part of Section 708(bx20) of the RTRL and Sections 1251 and 1236.1 of the Coroner's Act because nothing in Section 1251 limits public access to manner of death records. Requesters further argue that there is nothing in Section 1236.1 of the Coroner's Act that conflicts with requiring manner of death records to be disclosed immediately under the RTKL because the only discretion the Coroner has under Section 1236.1 is whether to perform services in the first place. Finally, Requesters argue that to withhold immediate access to these records under the RTKL would undermine the General Assembly's intent to promote timely access of government information to citizens by narrowly construing the exemptions from disclosure. 8 In opposition, the Coroner essentially adopts the OOR's analysis in its Reconsideration Determination and argues that manner of death records are not available for immediate disclosure under the Proviso in Section 708(b)(20) of the RTKL. Relying on the Supreme Court's decision in Penn Jersey, the OOR determined that the RTKL cannot mandate immediate access to manner of death records under the Proviso because, if it did, the RTKL would conflict with Sections 1251 and 1236.1 of the Coroner's Act. (Reconsideration Determination at 7-8, R.R. at 37a-38a.) The Supreme Court issued its decision in Penn Jersey prior to the enactment of Section 708(b)(20) of the RTKL. Nonetheless, the Supreme Court's opinion in Penn Jersey interprets Sections 1251 and 1236.1 of the Coroner's Act and provides insight into the interplay between the RTKL and the Coroner's Act. In Penn Jerse, the Supreme Court reversed this Court and held that a coroner's autopsy report is an official record within the meaning of Section 1251 of the Coroner's Act and, therefore, must be deposited with the prothonotary. Penn Jersey, 599 Pa. at 541, 962 A.2d at 636-37. Although the Supreme Court expressed "no opinion at this time on the relationship between the Coroner's Act and the [RTKL]," id. at 536 n.2, 962 A.2d at 633 n.2, in reaching this holding, the Supreme Court explained: Me do not share the Commonwealth Court's perception that there is a conflict between Section 1251, which may allow access to autopsy reports free of charge if they are deemed "official" records, and the later-enacted Section 1236.1(c), which allows a coroner to charge for autopsy reports. By the terms of Section 1251, the records that a coroner must deposit with the prothonotary are not available until thirty days after the end of each year, at which time interested persons may "inspect" such records. Section 1236.1, which is entitled 9 "Requests for examinations and reports," authorizes a coroner to charge up to $100 for each autopsy report, without mention of any time requirement. 16 P.S. § 1236.1(c). Thus, Section 1236.1 merely provides a rapid menus of procuring an autopsy report for those who do not wish to wait until after the end of the year, and who are also willing to pay the charges associated with procuring it. The existence of such mechanism for obtaining an autopsy report does not compel the conclusion that autopsy reports are therefore not official records under Section 1251. Id. at 542-43, 962 A.2d at 637 (emphasis added) (citations omitted). Keeping the Supreme Court's interpretation of the Coroner's Act in mind, we now determine whether an interpretation of Section 708(b)(20) of the RTKL requiring manner of death records to be immediately disclosable would conflict with the Coroner's Act. In interpreting exemptions under the RTKL, this Court is required to follow the rules of statutory construction, which direct that "[e]very statute shall be construed, if possible, to give effect to all of its provisions" and that "[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." Section 1921(a) and (b) of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1921(a)-(b). This Court is not permitted to "insert a word the legislature failed to supply into a statute." Girgis v. Board of Physical Therapy, 859 A.2d 852, 854 (Pa. Cmwlth. 2004). However, where a statute is ambiguous, this Court may look beyond the plain language of a statute and consider other matters, such as: "[t]he occasion and necessity for the statute"; "[t]he object to be attained"[t]he former law, if any, including other statutes upon the same or similar subjects"; "[tlhe consequences of a particular interpretation"; or "[l]egislative and administrative interpretations of such a statute." 1 Pa. C.S. § 1921(cXl), (4)-(6), (8). Additionally, it is to be presumed "[t]hat the General Assembly does not intend a result that is absurd, 10 impossible of execution or unreasonable" and "[t]hat the General Assembly intends the entire statute to be effective and certain." Section 1922(1) and (2) of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1922(1)-(2). Although at first blush the Proviso appears to be an exception within the exemption, we agree with the OOR that such interpretation cannot prevail because immediate disclosure of manner of death records would conflict with the Coroner's Act, which was not the intent of the General Assembly when enacting the RTKL. Although the RTKL generally mandates immediate access to public records, Section 3101.1 of the RTKL provides that "[i]f the provisions of this act regarding access to records conflict with any other Federal or State law, the provisions of this act shall not apply." 65 P.S. § 67.3101.1. The Coroner's Act specifies that manner of death information is to be filed annually, "within thirty (30) days after the end of each year ... for the inspection of all persons interested therein." 16 P.S. § 1251. Thus, requiring the immediate disclosure of manner of death information under the Proviso set forth in Section 708(b)(20) would be inconsistent with a coroner's specific obligation to annually file this information with the prothonotary pursuant to Section 1251 of the Coroner's Act. The Coroner's Act also specifically authorizes a coroner to exercise discretion with regard to "[r]equests for examinations or other professional services." 16 P.S. § 1236.1(a). Such requests could include requests for autopsies or other medical examinations that usually generate a written report. A coroner's discretion under this section extends to not only deciding whether to undertake certain examinations and services but also to releasing the information within the written report that was generated by those services. Penn Jersey, 599 Pa. at 541-42, 962 A.2d at 637. As correctly noted by 11 the Coroner, it would be inconsistent with Section 1236.1 of the Coroner's Act, which gives a coroner discretion regarding whether to release cause of death information before being required to do so under the Coroner's Act, to require a coroner to immediately release that same information upon request under the RTKL. Moreover, in interpreting Sections 1251 and 1236.1 of the Coroner's Act, the Supreme Court, in Penn Jersey, made clear that the information contained in an autopsy report manner of death information-is not available to the public until the records are filed with the prothonotary thirty days after the end of the year in accordance with Section 1251, or prior to that time if a coroner uses his or her discretion to grant a request for rapid procurement under Section 1236.1. Penn Jersey, 599 Pa. at 542-43, 962 A.2d at 637. Thus, the Proviso cannot mandate immediate dsclosure.g Because we agree with the OOR and the Coroner that manner of death records are not immediately disclosable under Section 708(bX20) of the RTKL, we affirm the trial court's Order upholding the OOR's decision denying Requesters' appeal from their RTKL Request-9 8 We note that interpreting the Proviso to be consistent with the Coroner's Act also enables individuals who wish to challenge disclosure of a coroner's records v ilbout redaction to know when such disclosure would be made. 5,w Article I, section l of the Pennsylvania Constitution (acknowledging a fundarnental constitutional right to reputation); Penn Jersey, 599 Pa. at 542, 962 A.2d at 637 (stating that trial courts have inherent power to limit public access to coroner's reports based on privacy or privilege concerns). 9 Here, our determination is limited to the autopsy exemption found in Section 70W)(20) of the RTKL. The Coroner has not asserted that any other exemptions under the RTKL would prevent manner of death records from being publicly disclosed. 12 B. Whether the Parties are entitled to Costs and Fees Requesters argue that they are entitled to a reasonable sum reflecting attorney's fees and costs of litigation pursuant to Section 1304(a) of the RTKL, 65 P.S. § 67.1304(a), because the Coroner's denial of the Request is contradicted by the language in Section 708(b)(20) of the RTKL and undermines the clear intent in the RTKL to promote timely access to public records. The Coroner argues that he is entitled to fees and costs pursuant to Section 1304(b) of the RTKL, 65 P.S. § 67.1304(b), because Requesters have offered no substantial basis for their appeal and their appeal is frivolous. Reasonable attorney fees and costs of litigation may be granted under Section 1304 of the RTKL, which provides: (a) Reversal of agency determination.--If a court reverses the final determination of the appeals officer or grants access to a record after a request for access was deemed denied, the court may award reasonable attorney fees and costs of litigation or an appropriate portion thereof to a requester if the court finds either of the following: (1) the agency receiving the original request willfully or with wanton disregard deprived the requester of access to a public record subject to access or otherwise acted in bad faith under the provisions of this act; or (2) the exemptions, exclusions or defenses asserted by the agency in its final determination were not based on a reasonable interpretation of law. (b) Sanctions for frivolous requests or appeals.--The court may award reasonable attorney fees and costs of litigation or an appropriate portion thereof to an agency or the requester if the court finds that the legal challenge under this chapter was frivolous. (c) Other sanctions.--Nothing in this act shall prohibit a court from imposing penalties and costs in accordance with applicable rules of court. 13 65 P.S. § 67.1304. With regard to Requesters' argument that they are entitled to fees and costs under Section 1304(x), that request is denied because Requesters have not prevailed in this appeal and there is absolutely no evidence presented that the Coroner acted in bad faith or refused the Request based on an unreasonable interpretation of the law. Likewise, the Coroner's request for costs and fees under Section 1304(b) is denied because the issue presented in this appeal is a novel issue and involves the interpretation of two complicated statutes. The Coroner presented no evidence that Requesters' commencement of this appeal was arbitrary, vexatious or done in bad faith within the meaning of Section 1304(b) of the RTKL. Therefore, fees and costs are denied to both parties. M. Conclusion Based on the foregoing opinion, we affirm the Order of the trial court and deny both parties costs and fees. - 14WW- && &L".4 RE AE COHN JUR IRER, Judge 14 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Hearst Television, Inc., d/b/a WGAL-TV and Daniel O'Donnell, Appellants V. Michael L. Norris, in his official capacity as Coroner of Cumberland County and The Pennsylvania Office of Open Records . No. 95 C.D. 2010 ORDER NOW, November 16, 2010, the order of the Court of Common Pleas of Cumberland County in the above-captioned matter is hereby AFFIRMED. The request for reasonable attorney fees and litigation costs made by Appellants and Appellees are hereby DENIED. RE A E COHN JUB LIRER, Judge Certffied from the Re=d NON 16 2010 Mid Order E* Irene M. Bizzoso, Esq. Prothonotary Hizabeth } Zisk Chiel Clerk Buell, David D. Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Middle District December 6, 2011 601 Commonwealth Arenue, Suite 4500 I'.0. Box 62575 Harrisburg, PA 17106 (717) 787 6181 www.pacourts,us RE: Hearst Television Inc., d/b/a WGAL-TV and Daniel O'Donnell, Petitioners V. Michael L. Norris, in 'is official capacity as Coroner of Cumberland County, and The Pennsylvania Office of Open Records, Respondents No. 925 MAL 2010 Consolidated Cases: Trial Court Docket No: 09-5832 Civil Term 95 CD 2010 Commonwealth Docket Number: 95 CD 2010 Appeal Docket No: 112 MAP 2011 Date Petition for Allowance of Appeal Filed: December 6, 2010 Disposition: Order Granting Petition for Allowance of Appeal Disposition Date: December 06, 2011 Reargument/Reconsideration Disposition: Reargument/Reconsideration Disposition Date: /mjh ~u~reme t~flurt of ~e>tYr>rgpCbattia Irene M. Bizzoso, Esq. Prothonotary Middle District Elizabeth E. Zisk Chief Clerk November 13, 2012 RECORD REMITTAL -COURTS ONLY 601 Commonwealth Avenue, Suite 4500 P.O. Box 62575 Harrisburg, PA 17106 (717) 787-6181 www.pacourts.us TO: David D. Buell ~`~ r~.~ . ~ ~_ - Prothonotary c -~3 ~ ;~ , , --~ f't'i~ Z ~- -rt RE: Hearst TV, et al, Aplts v. Cumberland Co. Coroner ~~„~ "~ 112 MAP 2011 -ts' cn +~`; Intermediate Court Docket No: 95 CD 2010 CQ =~~' Trial Court: Cumberland County Court of Common Pleas i~ ~ ~: ~::~~ Trial Court Docket No: 09-5832 Civil Term v~ .--, Y-- ; ~-~;,,=, 09-5832 Civil Term ~ -- ~~' - , ~- Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Original Record contents: Item Filed Date Description 1 Part (Commonwealth Court) December 8, 2011 /1 Part (Court of Common Pleas) December 8, 2011 Remand/Remittal Date: 11/13/2012 ORIGINAL RECIPIENT ONLY -Please acknowledge receipt by signing, dating, and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. Very truly yours, Office of the Prothonotary leez Enclosure Initiating Document: Order Granting Petition for Allowance of Appeal Case Status: Closed Journal Number: J-69-2012 May 9, 2012 Case Category: Civil Case Type(s): Other s Attorney: Gayle Chatilo Sproul, Esq. Address: Levine Sullivan Koch & Schulz, LLP 1760 Market St. Suite 1001 Philadelphia, PA 19103 Phone No: (215) 988-9778 Representing: Hearst Television, Inc., d/b/a WGAL-TV, and Daniel O'Donnell, Appellant Pro Se: No IFP Status: Attorney: Michael Louis Berry, Esq. Address: Levine Sullivan Koch & Schulz, LLP 1760 Market St. Suite 1001 Philadelphia, PA 19103 Phone No: (215) 988-9778 Representing: Hearst Television, Inc., d/b/a WGAL-TV, and Daniel O'Donnell, Appellant Pro Se: No IFP Status: Neither the Appellate Courts nor the Administrative Office of Pennsylvania Courts assumes any liability for inaccurate or delayed data, errors or omissions on the docket sheets. 3:46 P.M. Supreme Court of Pennsylvania Appeal Docket Sheet Docket Number: 112 one ~ ~f A Address: 300 West 57th Street, 40th FI. New York, NY 10019--3792 Phone No: Representing: Hearst Television, Inc., d/b/a WGAL-TV, and Daniel O'Donnell, Appellant Pro Se: No IFP Status: Attorney: Stephen H. Yuhan, Esq. Pro Hac Vice Address: The Hearst Corporation 300 West 57th Street, 40th FI. New York, NY 10019--3792 Phone No: (212) 649-2020 Representing: Hearst Television, Inc., d/b/a WGAL-TV, and Daniel O'Donnell, Appellant Pro Se: No IFP Status: Attorney: Melissa Bevan Melewsky, Esq. Pennsylvania Newspaper Association Address: 3899 N Front St Harrisburg, PA 17110 Phone No: (717) 703-3000 Representing: PA Newspaper Association, Appellant Amicus Curiae Pro Se: No IFP Status: Attorney: Keith On- Brenneman, Esq. Snelbaker & Brenneman, P.C. Address: 44 W Main St Mechanicsburg, PA 17055 Phone No: (717) 697-8528 Representing: Norris, Michael L., Appellee Pro Se: No IFP Status: Attorney: Nathanael J. Byerly, Esq. Office of Open Records Address: Commonwealth Keystone Building 400 North St 4th FI Harrisburg, PA 17120--0225 Phone No: (717) 346-9903 Representing: Office of Open Records, Appellee Pro Se: No IFP Status: Neither the Appellate Courts nor the Administrative Office of Pennsylvania Courts assumes any liability for inaccurate or delayed data, errors or omissions on the docket sheets. 3:46 P.M. Supreme Court of Pennsylvania Appeal Docket Sheet Docket Number: 112 MAP 2011 Page 3 of 8 November 13, 2012 :~.. ._ , , Attorney: Charles Rees Brown, Esq. PA Department of Community and Economic Development Address: PA Office of Open Records 400 North St FI 4 Harrisburg, PA 17120 Phone No: (717) 346-9903 Representing: Office of Open Records, Appellee Pro Se: No IFP Status: Attorney: Dena Lefkowitz, Esq. Commonwealth of PA Address: Ofc of Open Records 400 N St Plz Level Harrisburg, PA 17120--0225 Phone No: (717) 364-9903 Representing: Office of Open Records, Appellee Pro Se: No IFP Status: Attorney: William J. Haberstroh, Esq. Address: Haberstroh, Sullivan, Keating & George LLP 3615 Burgoon Road Altoona, PA 16602 Phone No: (814) 944-9486 Representing: Pennsylvania Coroner's Association, Appellee Amicus Curiae Pro Se: No IFP Status: Attorney: Terressa E. George, Esq. Law Offices of William J. Haberstroh Address: Haberstroh Sullivan ET AL 3615 Burgoon Rd Altoona, PA 16602 Phone No: (814) 944-9486 Representing: Pennsylvania Coroner's Association, Appellee Amicus Curiae Pro Se: No IFP Status: Neither the Appellate Courts nor the Administrative Office of Pennsylvania Courts assumes any liability for inaccurate or delayed data, errors or omissions on the docket sheets. 3:46 P.M. Supreme Court of Pennsylvania Appeal Docket Sheet Docket Number: 112 MAP 2011 Page 4 of 8 November 13, 2012 Appeal From: the order of Commonwealth Court at No. 95 CD 2010 dated 11-16-2010 affirming the order of the Cumberland county court of common Pleas, Civil Division, at No. 09-5832 civil term dated 12/23/2009. Probable Jurisdiction Noted: Docketed Date: December 6, 2011 Allocatur Granted: December 6, 2011 Allocatur Docket No: 925 MAL 2010 Allocatur Grant Order: AND NOW, this 6th day of December, 2011, the Petition for Allowance of Appeal is GRANTED. The issues, as stated by Petitioner, are: 1. Whether the Commonwealth Court erred by applying a new lenient standard of inconsistency for determining when statutory provisions conflict (and thus may be denied effect) instead of the strict irreconcilable standard required by the Statutory Construction Act and precedents of this Court[?] 2. Whether the Commonwealth Court erred in its application of Penn Jersey Advance, Inc. v. Grim, 599 Pa. 534, 962 A.2d 632 (2009), citing it as precedent for finding conflict between the annual public filing requirement under the Coroner's Act and the Right-To-Know Law's requirement of immediate disclosure, when Penn Jersey reached a contrary conclusion, finding that the same annual filing requirement did not conflict with a statutory provision allowing immediate disclosure[?] Fee Dt Fee Name Fee Amt Receipt Dt Receipt No Receipt Amt Court Name: Commonwealth Date of Order: November 16, 2010 Judge(s): Cohn Jubelirer, Renee Leavitt, Mary Hannah Friedman, Rochelle S. Intermediate Appellate Court Action: Affirmed Referring Court: Docket Number: 95 CD 2010 Rearg/Recon Disp Date: Rearg/Recon Disposition: Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Cumberland County Civil Division Date of Agency/Trial Court Order: December 23, 2009 Order Type: Order OTN(s): Lower Ct Docket No(s):09-5832 Civil Term Lower Ct Judge(s): Bayley, Edgar B. President Judge 09-5832 Civil Term Hess, Kevin A. President Judge Original Record Item Filed Date Content/Description 1 Part (Commonwealth Court) December 08, 2011 Neither the Appellate Courts nor the Administrative Office of Pennsylvania Courts assumes any liability for inaccurate or delayed data, errors or omissions on the docket sheets. 3:46 P.M. Supreme Court of Pennsylvania Appeal Docket Sheet Docket Number: 112 MAP 201 Page 5 of 8 November 13, 2012 Original Record Item Filed Date Content/Description 1 Part (Court of Common Pleas) December 08, 2011 Record Remittal: November 13, 2012 Appellant Appellee Hearst Television, Inc., d/b/a WGAL-TV, and Daniel Norris, Michael L. O'Donnell Brief Brief Due: March 19, 2012 Filed: March 16, 2012 Due: February 16, 2012 Filed: February 16, 2012 Office of Open Records Reply Brief Brief Due: April 16, 2012 Filed: April 16, 2012 Due: March 19, 2012 Filed: March 16, 2012 Reproduced Record Due: February 16, 2012 Filed: February 16, 2012 Appellant Amicus Curiae PA Newspaper Association Brief Due: February 16, 2012 Filed: February 16, 2012 Filed Date: Disposition: Reargument Order: Record Remittal: Category: Disposition: Dispositional Filing Filed Date: Justice November 13, 2012 Decided Reversed Majority Opinion October 17, 2012 Castille, Ronald D. Appellee Amicus Curiae Pennsylvania Coroner's Association Brief Due: March 19, 2012 Filed: March 19, 2012 Date: Disposition Author: Disposition Date: Author: Vote: Baer, Max October 17, 2012 Baer, Max Joins ~ustlce: Saylor, Thomas G. Vote: Joins Justice: Todd, Debra Vote: Joins Neither the Appellate Courts nor the Administrative Office of Pennsylvania Courts assumes any liability for inaccurate or delayed data, errors or omissions on the docket sheets. 3:46 P,M. Supreme Court of Pennsylvania Appeal Docket Sheet Docket Number: 112 MAP 2011 Page 6 of 8 November 13, 2012 Justice: McCaffery, Seamus P. Vote: Joins Justice: Orie Melvin, Joan Vote: Did Not Participate in the Decision o the ase Dispositional Filing: Dissenting Opinion Author: Eakin, J. Michael Filed Date: October 17, 2012 Filed Date Docket Entry /Representing Participant Type Filed By December 6, 2011 Allocatur Granted Per Curiam Comments: AND NOW, this 6th day of December, 2011, the Petition for Allowance of Appeal is GRANTED. The issues, as stated by Petitioner, are: 1. Whether the Commonwealth Court erred by applying a new lenient standard of inconsistency for determining when statutory provisions conflict (and thus may be denied effect) instead of the strict irreconcilable standard required by the Statutory Construction Act and precedents of this Court[?] 2. Whether the Commonwealth Court erred in its application of Penn Jersey Advance, Inc. v. Grim, 599 Pa. 534, 962 A.2d 632 (2009), citing it as precedent for finding conflict between the annual public filing requirement under the Coroner's Act and the Right-To-Know Law's requirement of immediate disclosure, when Penn Jersey reached a contrary conclusion, finding that the same annual filing requirement did not conflict with a statutory provision allowing immediate disclosure[?] December 8, 2011 Commonwealth Ct. Record Received Commonwealth Court of Pennsylvania December 22, 2011 Application for Extension of Time to File Brief Appellant Hearst Television, Inc., d/b/a WGAL-TV, and Daniel O'Donnell December 23, 2011 Order Granting Application for Extension of Time to File Brief and Reproduced Record Dreibelbis, Amy Comments: AND NOW, this 23rd day of December, 2011, Appellant's motion for extension of time is granted. Appellant's Brief and Reproduced Record shall be filed on or before February 16, 2012. /s/ Amy L. Dreibelbis, Staff Attorney December 23, 2011 Order Exited Office of the Prothonotary February 16, 2012 Appellant Amicus Curiae's Brief Filed Appellant Amicus Curiae PA Newspaper Association February 16, 2012 Praecipe for Appearance PA Newspaper Association Appellant Amicus Curiae Melewsky, Melissa Bevan Neither the Appellate Courts nor the Administrative Office of Pennsylvania Courts assumes any liability for inaccurate or delayed data, errors or omissions on the docket sheets. 3:46 P.M. Supreme Court of Pennsylvania Appeal Docket Sheet Docket Number: 112 MAP 2011 Page 7 of 8 November 13, 2012 Filed Date Docket Entry /Representing Participant Type Filed By February 16, 2012 Appellant's Brief Filed Appellant Hearst Television, Inc., d/b/a WGAL-TV, and Daniel O'Donnell February 16, 2012 Appellant's Reproduced Record Filed Appellant Hearst Television, Inc., d/b/a WGAL-TV, and Daniel O'Donnell March 16, 2012 Appellee's Brief Filed Appellee Norris, Michael L. March 16, 2012 Amicus Curiae Brief Filed Appellee Office of Open Records Comments: Office of Open Records contends status as an Appellee and files as Amicus Curiae. (See page 2 of brief) March 19, 2012 Praecipe for Appearance Pennsylvania Coroner's Appellee Amicus Curiae George, Terressa E. Association Pennsylvania Coroner's Appellee Amicus Curiae Haberstroh, William J. Association March 19, 2012 Appellee Amicus Curiae's Brief Filed Appellee Amicus Curiae Pennsylvania Coroner's Association March 30, 2012 Application for Extension of Time to File Reply Brief Appellant Hearst Television, Inc., d/b/a WGAL-TV, and Daniel O'Donnell March 30, 2012 Order Granting Application for Extension of Time to File Brief Dreibelbis, Amy Comments: AND NOW, this 30th day of March, 2012, Appellants' application for extension of time is GRANTED. Appellants' Reply Brief shall Ibe filed on or before April 16, 2012 March 30, 2012 Order Exited Office of the Prothonotary April 11, 2012 Acknowledgement of Argument Notice Norris, Michael L. Appellee Brenneman, Keith Orr Apri116, 2012 Acknowledgement of Argument Notice Hearst Television, Inc., d/b/a Appellant Berry, Michael Louis WGAL-TV, and Daniel O'Donnell Hearst Television, Inc., d/b/a Appellant Donnellan, Jonathan R. WGAL-TV, and Daniel O'Donnell Hearst Television, Inc., d/b/a Appellant Sproul, Gayle Chatilo WGAL-TV, and Daniel O'Donnell Comments: Note: cover letter indicates that Mr. Jonathan Donnellan will be arguing pro hac vice Neither the Appellate Courts nor the Administrative Office of Pennsylvania Courts assumes any liability for inaccurate or delayed data, errors or omissions on the docket sheets. 3:46 P.M. Supreme Court of Pennsylvania Appeal Docket Sheet Docket Number: 112 MAP 2011 Page 8 of 8 November 13, 2012 Filed Date Docket Entry /Representing Participant Type Filed By April 16, 2012 Appellant's Reply Brief Appellant Hearst Television, Inc., d/b/a WGAL-TV, and Daniel O'Donnell May 9, 2012 Argued Supreme Court of Pennsylvania October 17, 2012 Reversed Comments: The order of the Commonwealth Court is reversed. Baer, Max Madame Justice Orie Melvin did not participate in the decision of this case. Mr. Chief Justice Castille, Mr. Justice Saylor, Madame Justice Todd and Mr. Justice McCaffery join the opinion. Mr. Justice Eakin files a dissenting opinion. October 17, 2012 Judgment Entered Office of the Prothonotary November 13, 2012 Remitted Comments: O.R. (1 part) remitted to Cumberland County CCP O.R. (1 part) remitted to Commonwealth Court Docket Number: 925 MAL 2010 Docket Number: 95 CD 2010 Office of the Prothonotary Neither the Appellate Courts nor the Administrative Office of Pennsylvania Courts assumes any liability for inaccurate or delayed data, errors or omissions on the docket sheets. [J-69-2012] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ. HEARST TELEVISION INC., D/B/A WGAL-TV AND DANIEL O'DONNELL, Appellants v. MICHAEL L. NORRIS, IN HIS OFFICIAL CAPACITY AS CORONER OF CUMBERLAND COUNTY, AND THE PENNSYLVANIA OFFICE OF OPEN RECORDS, Appellees No. 112 MAP 2011 Appeal from the Commonwealth Court : order of November 16, 2010, at 95 CD 2010, affirming the order of the Cumberland County Court of Common Pleas of December 23, 2009, at 09-5832 Civil Term 8 A.3d 420 ARGUED: May 9, 2012 OPINION MR. JUSTICE BAER c-s ~.,.> C:7 ~~ ~~ ~ t`*'t ~...~ ~_ ~ '""= --< _' c.n r" ._ "~ c~ a ~ r~ ~ c, ~-~ ^.~. :~{ -~- ~, ~:, DECIDED: October 17, 2012 :i -_, in=k ~~~ r-~ --a C.? :, :-~ -.-3 ~=_ ~ f ~~r --~: Following the death of a college student in Shippensburg, Hearst Television, 1nc., d/b/a WGAL-TV and its reporter, Daniel O'Donnell (Requester), filed a Right to Know Law (RTKL) request with Michael Norris, the Coroner of Cumberland County (Coroner), seeking the student's manner of death. The Coroner rejected the request, and the Pennsylvania Office of Open Records (OOR) upheld the Coroner's decision. On appeal, the trial court and the Commonwealth Court afFrmed. We reverse, holding that ~~aa~se~,o~,z~s„~I~,ne~a~ol~iAll~A~~~~~l~~~lfllf~~l~~ V~ P.S. §§ 67.101-67.3104, the Coroner's record indicating the manner of death was _ immediately available to Requester. Because this case involves the interpretation and interplay of two statutes, a brief review of the relevant provisions is helpful before we turn to the facts of the case. First, the Coroner's Act' authorizes the county coroner to investigate certain deaths to determine their cause and manner. See 16 P.S. § 1237(a) & (b) (authorizing the coroner to investigate the facts and circumstances of certain deaths for the purpose of determining "the cause of any such death"); id. at § 1238 (authorizing the coroner to perform an autopsy or conduct an inquest when the coroner cannot otherwise determine the cause and manner of death); id. at § 1239 (authorizing the coroner to investigate a sudden death to determine its cause and manner); Commonwealth v. Boczkowski, 846 A.2d 75, 88 (Pa. 2004) (recognizing that "[a]lthough death itself occurs in innumerable ways, there are but a limited number of manners of death: suicide, natural causes, accident, homicide or, in rare instances, indeterminable."). The Coroner's Act further imposes an obligation to deposit all of a coroner's official records and papers for public inspection, free of charge, as follows: Every coroner, within thirty (30) days after the end of each year, shall deposit all of his official records and papers for the preceding year in the office of the prothonotary for the inspection of all persons interested therein. The collection of statutory provisions commonly referred to as the Coroner's Act are contained in The County Code at 16 P.S. §§ 1214 and 1231-1260. Penn Jersey Advance, Inc. v. Grim, 962 A.2d 632 (Pa. 2009). [J-69-201 Z] - 2 16 P.S. § 1251. It is not disputed that the "official records and papers" that must be deposited annually include cause and manner of death records. C.F. Penn Jersey Advance, Inc. v. Grim, 962 A.2d 632, 636 (Pa. 2009). Additionally, Section 1236.1(a) & (b) of the Coroner's Act gives coroners discretion to accommodate "requests for examination or other professional services by other counties or persons" subject to guidelines established by the county commissioners and for established fees.2 Section 1236.1(c) allows the coroner to charge a limited fee for autopsy reports, toxicology reports, inquisition or coroner's reports, and "other reports and documents requested by nongovernmental agencies." 16 Pa.C.S. §1236.1(c). The parties agree 2 Section 1236.1 provides in its entirety: a) Requests for examinations or other professional services by other counties or persons may be complied with at the discretion of the coroner pursuant to guidelines established by the county commissioners. (b) A set of fees and charges for such examinations or professional services shall be established by the coroner, subject to approval by the county commissioners, and shall be accounted for and paid to the county treasurer pursuant to section 1760. Payment for examinations or professional services shall be the responsibility of the county or person requesting such services. (c) The coroner may charge and collect a fee of up to one hundred dollars ($100) for each autopsy report, up to fifty dollars ($50) for each toxicology report, up to fifty dollars ($50) for each inquisition or coroner's report and such other fees as may be established from time to time for other reports and documents requested by nongovernmental agencies. The fees collected shall be accounted for and paid to the county treasurer pursuant to section 1760 and shall be used to defray the expenses involved in the county complying with the provisions of the act of March 2, 1988 (P.L. 108, No. 22), referred to as the Coroners' Education Board Law. 16 P.S. § 1236.1. [J-69-2012] - 3 that the manner of death record requested in this case is included in Section 1236.1 (c) as an "other report or document." 3 Accordingly, although the coroner is obligated to deposit its official records and papers, including cause and manner of death records, for public inspection with the prothonotary by January 30 of the following year, see id. § 1251, Section 1236.1 (c) of the Coroner's Act also provides a rapid means of procuring coroners' records for a fee if an entity or individual does not want to wait until thirty days after the end of the year. See Penn Jersey, 962 A.2d at 637 (reconciling an asserted conflict between the year-end reporting requirement of Section 1251 and the fee provision of Section 1236.1(c) by explaining that "Section 1236.1 [(c)] merely provides a rapid means of procuring an autopsy report for those who do not wish to wait until after the end of the year, and who are also willing to pay the charges associated with procuring it."). 3 Although the RTKL request advanced in this case requested only the manner of death, cause of death and manner of death determinations are generally treated the same by the Coroner's Act. Indeed, the document that indicates the manner of death, entitled Report of Death, also includes the cause of death, the .name, age, and address of the decedent, and the time, date, and place of death. The Coroner also is responsible for autopsy reports, which are subject to both the annual reporting requirement of Section 1251 and are available at other times pursuant to Section 1236.1(c). See Penn Jersey Advance, Inc. v. Grim, 962 A.2d 632, 636 (Pa. 2009). There is no argument in this case that the manner of death record at issue in this case is not subject to Section 1251 and 1236.1(c). Moreover, all parties agree that Penn Jersey, which involved autopsy reports, is equally applicable to the manner of death record requested in this case. As discussed below, however, the RTKL distinguishes between autopsy records and "cause and manner of death." See 65 P.S. § 67.708(b)(20). [J-69-2012] - 4 The other statute involved in this case is the RTKL, 65 P.S. §§ 67.101-67.3104. The RTKL presumes that all records in possession a local agency are public, see 65 P.S. § 67.305, and are therefore accessible for inspection and duplication, see 65 P.S. § 67.701. A public record is defined as "(a] record, including a financial record, of a Commonwealth or local agency that: (1) is not exempt under section 708; (2) is not exempt from being disclosed under any other Federal or State law or regulation or judicial order or decree; or (3) is not protected by a privilege." 65 P.S. § 67.102. The exemption implicated here is Section 708(b)(20), which exempts, inter alia, a coroner's autopsy records. Importantly, however, Section 708(b)(20) also contains a proviso that "[t]his exception shall not limit the reporting of the name of the deceased individual and the cause and manner of death." 65 P.S. § 67.708(b)(20).4 The RTKL also contains a conflict provision: "[i]f the provisions of this act regarding access to records conflict with a The full text of Section 708(b)(20) is as follows: (b) Exceptions.--Except as provided in subsections (c) and (d), the following are exempt from access by a requester under this act: *** (20) An autopsy record of a coroner or medical examiner and any audiotape of a postmortem examination or autopsy, or a copy, reproduction or facsimile of an autopsy report, a photograph, negative or print, including a photograph or videotape of the body or any portion of the body of a deceased person at the scene of death or in the course of a postmortem examination or autopsy taken or made by or caused to be taken or made by the coroner or medical examiner. This exception shall not limit the reporting of the name of the deceased individual and the cause and manner of death. 65 P.S. § 708(b)(20). [J-69-2012] - 5 any other Federal or State law, the provisions of this act shall not apply." 65 P.S. § 67.3101.1. With this statutory background in mind, we turn to the facts of this case. On April 16, 2009, anineteen-year old college student was found dead in his Shippensburg apartment, and, subsequently, the Coroner investigated his death. In due course, the Coroner determined the student's cause and manner of death. Requester filed aRight- to-Know request (Request) with the Coroner pursuant to the RTKL, seeking solely the "[m]anner of death." The Coroner, acting in accord with the RTKL as an Agency Open Records Officer, see 65 P.S. § 67.502,5 denied the request. The Coroner indicated that cause and manner of death records would only become available to the public thirty days after the end of the year in accord with Section 1251 of the Coroner's Act, 16 P.S. § 1251. The Coroner viewed the RTKL as providing no greater right of access than that already provided in Section 1251 of the Coroner's Act. Pursuant to the RTKL, Requester appealed the Coroner's determination to the OOR. See 65 P.S. § 67.1101. On May 27, 2009, the OOR issued a determination denying the appeal and affirming the Coroner's determination, concluding that the cause and manner of death record only becomes a public record subject to disclosure under the RTKL when it has already been made public pursuant to Section 1251 of the Coroner's Act. Thus, Requester would have to wait to view the manner of death record 5 Section 502 of the RTKL requires each agency to designate an official or employee to act as an open-records officer to receive requests submitted under the RTKL. 65 P.S. § 67.502. [J-69-2012] - 6 until the Coroner deposited his official records and papers with the prothonotary by January 30, 2010. Requester filed a motion for reconsideration, which the OOR granted before issuing a final determination affirming the Coroner's rejection of the Request and concluding that the RTKL did not require immediate access to the manner of death. The OOR further took the opportunity to address a specific legal challenge advanced by Requester to its initial ruling. Specifically, Requester argued that under Section 305 of the RTKL all records in possession of a local agency are presumed to be public unless exempted by, inter alia, Section 708(b)(20). According to Requestor, although this section exempts a coroner's autopsy records, it also contains an exception to the exemption for "the reporting of the name of the deceased individual and the cause and manner of death." 65 P.S. § 67.708(b)(20). Based on this proviso, Requester argued that the report of the cause and manner of death is a public record subject to immediate disclosure under the RTKL. Rejecting Requester's argument premised on Section 708(b)(20), the OOR found that immediate disclosure of cause and manner of death records under the RTKL would conflict with the year-end disclosure requirement in Section 1251 of the Coroner's Act. The OOR found a further conflict between immediate disclosure under the RTKL and Section 1236.1 of the Coroner's Act. Although the OOR recognized that Section 1236.1(c) provided an avenue to access the coroner's records at any time, it interpreted Section 1236.1 (a) (authorizing the coroner to comply with "requests for examinations or other professional services" at the coroner's discretion) as also vesting discretion in the coroner as to whether to comply with requests for the early release of records, for a fee, [J-69-2012] - 7 under Section 1236.1(c). Because it viewed Section 1236.1(c) as providing the coroner with discretion, it found that it was in conflict with the mandatory, immediate release authorized under the RTKL. To resolve this perceived conflict, the OOR examined the conflict provision in Section 3101.1 of the RTKL. 65 P.S. § 67.3101.1 (directing that where there is a conflict between the RTKL and another law, the other law shall prevail). It held that Sections 1251 and 1236.1 of the Coroner's Act govern, and the RTKL merely provides a "vehicle" to obtain the Coroner's official records and papers after the Coroner has already deposited them with the prothonotary for public inspection in accord with Section 1251. Requester appealed to the court of common pleas. After a hearing, the trial court affirmed the OOR. The court focused on the language of Section 708(b)(20) and held that the intent of this section was to exempt from the definition of public records all autopsy records except to the extent the coroner is already obligated under Section 1251 of the Coroner's Act to make its records available following the end of the year. The trial court read Section 708(b)(20) as specifically accounting for the year-end reporting obligation of the Coroner's Act rather than mandating immediate access to the cause and manner of death report. The Commonwealth Court affirmed. Hearst Television, Inc. v. Norris, 8 A.3d 420 (Pa.Cmwlth. 2010). It held that although the RTKL generally mandates immediate access to public records, it does not apply where it conflicts with another law. See 65 P.S. § 67.3101.1. Turning to the Coroner's Act, the Commonwealth Court, like the Coroner, read the year-end public reporting obligation in Section 1251 as conflicting [J-69-2012] - 8 with the right of immediate access arguably granted in the RTKL, such that the Coroner's Act would prevail. The Commonwealth Court interpreted Section 1236.1 (a) as vesting discretion in the coroner with regard to whether to release written reports before January 30 of the following year. In reaching its conclusion the Commonwealth Court relied on our decision in Penn Jersey. In Penn Jersev, the issue before this Court was whether a coroner's autopsy report is an official record that must be deposited with the prothonotary in accord with Section 1251. Addressing the interplay between Section 1251 and Section 1236.1(c), we explained that under Section 1251, the records are not available for public inspection until the following year, while under Section 1236.1, a coroner may charge a fee for reports requested before January 30 of the following year. We concluded that Section 1236.1(c) provided a "rapid means" of obtaining an autopsy report from the coroner for those who did not want to wait until the record became available to the public after the end of the year. We made no mention of coroner discretion with regard to Section 1236.1(c). Nevertheless, from this discussion in Penn Jersev, the Commonwealth Court held that a coroner's discretion under Section 1236.1(a) to entertain requests for examinations or services by other counties or persons extended to releasing reports for a fee under Section 1236.1(c). It further interpreted Penn Jersev as follows: [I]n interpreting Sections 1251 and 1236.1 of the Coroner's Act, the Supreme Court, in Penn Jersey, made clear that the information contained in an autopsy report -- manner of death information -- is not available to the public until the records are filed with the prothonotary thirty days after the end of the year in accordance with Section 1251, or prior to that time if a coroner uses his or her discretion to grant a request for rapid procurement under Section 1236.1. [J-69-2012] - 9 Hearst Television, 2010 WL 4629943 (emphasis in original). According to the Commonwealth Court, immediate access under the RTKL would conflict with the coroner discretion it found in Section 1236.1(c) of the Coroner's Act, causing the Coroner's Act to prevail over the RTKL. See 65 P.S. § 67.3101.1 (directing that where there is a conflict between the RTKL and another law, the other law shall prevail). We granted review of the following issues: 1. Whether the Commonwealth Court erred by applying a new lenient standard of "inconsistency" for determining when statutory provisions conflict (and thus may be denied effect) instead of the strict "irreconcilable" standard required by the Statutory Construction Act and precedents of this Court[?] 2. Whether the Commonwealth Court erred in its application of Penn Jersev Advance, Inc. v. Grim, 599 Pa. 534, 962 A.2d 632 (2009), citing it as precedent for finding conflict between the annual public filing requirement under the Coroner's Act and the Right-To-Know Law's requirement of immediate disclosure, when Penn Jersev reached a contrary conclusion, finding that the same annual filing requirement did not conflict with a statutory provision allowing immediate disclosure[?] Hearst .Television, Inc. v. Norris, 32 A.3d 1260 (Pa. 2011). The issues presented involve statutory interpretation and are pure questions of law over which our standard of review is de novo and our scope of review is plenary. See, e.g_, Laird v. Dept of Pub. Welfare, 23 A.3d 1015, 1024 (Pa. 2011). Preliminarily, we observe that the parties do not argue that the issue is moot, and we conclude that it is not. Although the annual public reporting deadline of January 30, 2010, for all of the Coroner's 2009 official records and papers has passed, the issue raised is one of important public interest, is capable of repetition unless settled, and is apt to evade review. Commonwealth v. Dixon, 907 A.2d 468, 472-73 (Pa. 2006). [J-69-2012] - 10 The parties agree that cause and manner of death records are public records that must be disclosed to the public; they disagree about the timing of this obligation. Requester argues that the records are immediately available under Section 1236.1(c) of the Coroner's Act and Section 708(b)(20) of the RTKL, and asserts that the Commonwealth Court erred in finding a conflict between the Coroner's Act and the RTKL for five reasons. First, according to Requester, courts must construe statutes to avoid conflicts between statutory provisions when possible. See 1 Pa.C.S. § 1933 ("Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions is irreconcilable, the special provisions shall prevail ."). Requester argues that rather than construing the Coroner's Act and the RTKL together, the Commonwealth Court merely determined that there was a conflict, without determining whether the conflict was irreconcilable and whether the two statutes could be construed to give effect to both. Second, Requester argues that it is certainly possible to construe the two statutes to give effect to both as there is no conflict between immediate disclosure under the RTKL and the annual filing requirement in Section 1251 of the Coroner's Act. Third, Requester finds nothing in Section 1236.1 of the Coroner's Act that gives the Coroner any discretion with respect to requests for the disclosure of records. Requester observes, correctly, that the only time the word discretion appears in Section 1236.1 is in subsection (a) in relation to deciding whether to comply with requests that the coroner undertake certain tasks, specifically, "examinations and other professional services." 16 P.S. § 1236.1(a). Requester argues that this subsection merely addresses autopsies [J-69-2012] - 11 and other medical examinations and related tests, not the disclosure of records. Rather, the subsection addressing the disclosure of records, Section 1236.1(c), authorizes the coroner to charge certain fees for disclosing its records. According to Requester, nothing in subsection (c) affords discretion over whether to release or withhold records. Fourth, Requester argues that the Commonwealth Court's refusal to apply the RTKL based on a perceived conflict with the Coroner's Act makes little sense in this context where both statutes favor public disclosure. Fifth, Requester relies on this Court's decision in Penn Jersev as support for his position that he is entitled to immediate disclosure of the manner of death records. Specifically, Requester relies on our statement that there is no conflict between the year-end reporting obligation of Section 1251 and the rapid access provision of Section 1236.1(c). Penn Jersev, 962 A.2d at 637 (recognizing that "[b]y the terms of Section 1251, the records that a coroner must deposit with the prothonotary are not available until thirty days after the end of each year, at which time interested persons may "inspect" such records," while "Section 1236.1 merely provides a rapid means of procuring an autopsy report for those who do not wish to wait until after the end of the year, and who are also willing to pay the charges associated with procuring it."). According to Requester, the Commonwealth Court turned this analysis on its head when it held that the rapid access contemplated in Section 1236.1 (c) is subject to the coroner's discretion. Finally, Requester addresses Section 708(b)(20) of the RTKL. Requester observes that in enumerating exemptions from public disclosure in Section 708(b), the General Assembly could have exempted all official papers and records of coroners, but, [J-69-2012] - 12 instead, it carefully crafted a narrow exemption to disclosure solely for autopsy reports and certain related audio and photographic records. The exemption specifically does not encompass cause and manner of death records, which, according to Requester, therefore remain public records subject to disclosure. Requester lastly observes that the Commonwealth Court's interpretation would create a de facto coroner's exemption from the RTKL, permitting coroners to respond to requests for records in an arbitrary manner through the exercise of unfettered discretion, immunized from the appeal and judicial review procedures of the RTKL. Although the Coroner acknowledges that the manner of death records are available under the Coroner's Act, it responds to Requester's arguments by asserting that the Commonwealth Court did not err in finding a conflict between the RTKL and the Coroner's Act with regard to the timing of mandatory disclosure. It regards the conflict in the same manner as the Commonwealth Court did, premised on its view of that the only disclosure mandated by the Coroner's Act is the year-end filing requirement of Section 1251. The disclosure contemplated in Section 1236.1 is, according to the Coroner, discretionary, as the discretion referenced in subsection (a) extends not only to deciding whether to undertake certain examinations and services, but also to releasing the information within the written report that was generated by those services. In this regard, the Coroner argues that a request for a report under subsection (c) is "in essence a request for the professional services of the coroner in written form" subject to the coroner's discretion. Brief of Coroner at 9. The Coroner asserts that, in contrast, the RTKL would provide immediate access to the cause and manner of death records. The Coroner acknowledges but does not address Section 708(b)(20) of the RTKL. [J-69-2012] - 13 The Coroner continues that because the RTKL provides a general source of legislation, while the Coroner's Act provides special provisions with respect to the records of a coroner, the Coroner's Act controls. See 1 Pa.C.S. § 1933 (directing that if the conflict between a general provision and a special provision is irreconcilable, the special provisions shall prevail and shall be construed as an exception to the general provision). The Coroner finds further support in the conflict provision of the RTKL, see 65 P.S. § 67.3101.1. Turning to our decision in Penn Jersey, the Coroner recognizes that under the Coroner's Act, an autopsy report is either available at the end of the year upon deposit with the prothonotary pursuant to Section 1251, or may be procured sooner, for a fee, in accord with Section 1236.1(c). Because Penn Jersey was not decided on the basis of the RTKL, however, the Coroner argues that it offers nothing to answer whether there is a conflict between the RTKL and the Coroner's Act. The OOR filed a brief in support of the Coroners It argues that although the Statutory Construction Act provides guidance when courts are faced with statutes that irreconcilably conflict, see 1 Pa.C.S. §§ 1933-35, these statutory construction tools do not apply in the context of a conflict with the RTKL. Instead, the RTKL's own conflict provision, 65 P.S. 67.3101.1, applies, and directs that any conflict between the RTKL and any other law must be resolved in favor of the other law. This conflict provision, according to the OOR, does not require that a conflict be irreconcilable in order to determine the precedence of other statutes over the RTKL. The OOR argues that by s Although listed in the caption as a party to this case, the OOR has identified itself instead as amicus curiae pursuant to Pa.R.A.P. 531. [J-69-2012] - 14 not requiring the conflict to be irreconcilable, the General Assembly demonstrated its intention to make the RTKL subservient to all other statutes regarding access to public records. Concerning the purported conflict, the OOR agrees with the Coroner that immediate access under the RTKL would conflict the Coroner's Act, which it views as vesting discretion in the coroner with regard to requests for immediate access to records. The OOR explains that although Section 1236.1(c) does not use the word "discretion" with respect to reports, the discretion discussed in subsection (a) with regard to "requests for examinations or other professional services" also applies to subsection (c) because "where the coroner exercises the discretion to conduct an examination under Section 1236.1 [(a)] of the Coroner's Act, the coroner, likewise, possess the discretion to release any reports issued in connection therewith ...." Brief of OOR at 18-19. In interpreting the Coroner's Act and the RTKL, we are required to follow the rules of statutory construction, which direct that "[e]very statute shall be construed, if possible, to give effect to all of its provisions" and that "[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." 1 Pa.C.S. § 1921(a)-(b). See also Scheipe v. Orlando, 739 A.2d 475, 478 (Pa. 1999). Under Section 1921(c) of the Statutory Construction Act, it is only when the words of a statute "are not explicit" that a court may resort to other considerations, such as the statute's perceived "purpose," in order to ascertain legislative intent. Sternlicht v. Sternlicht, 876 A.2d 904, 909 (Pa. 2005). Although the Statutory Construction Act sets forth rules for a court to follow when provisions in or [J-69-2012] - 15 among statutes are in conflict and cannot be reconciled, see 1 Pa.C.S. §§ 1933-1936, the RTKL itself has a conflict provision that provides that if the RTKL conflicts with another law, "the provisions of [the RTKL] shall not apply." 65 P.S. § 67.3101.1. As noted, the purported conflict at issue in this case is the Coroner's Act and the RTKL. The year-end reporting requirement of Section 1251 requires that the coroner's official records and papers to be deposited with the prothonotary by January 30 of the following year. Because Requester chose not to wait until January 30, 2010, to review the cause and manner of death records at issue, Section 1236.1 is implicated. Subsection (a) of this section vests discretion in the coroner to decide whether to comply with requests for examinations or professional services made by other counties or persons, and subsection (b) permits the coroner to establish fees for such examinations and professional services. The release of reports is addressed in subsection (c), which permits the coroner to establish fees for, specifically, autopsy reports, toxicology reports, inquisition or coroner's reports, and "other reports and documents requested by nongovernmental agencies," which includes cause and manner of death records. 16 P.S. § 1236.1(c).' There is no mention in Section 1236.1(c) of discretion. By its plain terms, therefore, and contrary to the Commonwealth Court's holding and the dissenting opinion, Section 1236.1(c) allows the Incidentally, the fees collected for "examinations and professional services" and for various reports are not treated the same. While the fees collected pursuant to Section 1236.1(b} are paid into the county treasury as required by 16 P.S. § 1760, the fees collected pursuant to Section 1236.1 (c) are paid into the treasury specifically "to defray the expenses involved in the county complying with the ...Coroners' Education Board Law [16 P.S. §§ 9525.1-9525.6]." [J-69-2012] - 16 coroner to charge fees for records, but does not afford the coroner any discretion with regard to releasing such records. The discretion afforded to the coroner to entertain requests for "examinations or other professional services" by "other counties or persons" in Section 1236.1(a) plainly provides coroners with a choice about whether to allocate staff and resources beyond the coroner's statutory duties in its own county. See e.g_, 16 P.S. § 1237 (mandating investigations of the facts and circumstances of "deaths which appear to have happened within the county... "). It is also relevant that the discretion afforded in Section 1236.1(a) relates to services requested by other counties or persons. There is no argument that the services rendered by the Coroner with regard to the Shippensburg student's death arose because of a request by another county or person or that the coroner had discretion regarding whether to determine the student's cause and manner of death; rather, the death occurred in the Coroner's county and implicated the Coroner's statutory obligations. Consequently, the arguments of the Coroner, the OOR, and the dissent, that because the coroner has discretion in Section 1236.1(a) to decide whether to perform services requested by other counties or persons, the coroner must also have discretion regarding whether to release the records associated with those services, are not persuasive in the context of this case. Considering Sections 1236.1 (c) and 1251 in pari materia, as we must pursuant to the Statutory Construction Act, 1 Pa.C.S. § 1932, the Coroner's Act provides two methods of public access: the coroner's year-end archiving of all "official records and papers" with the prothonotary, in accord with Section 1251, or rapid access for those who do not wish to wait and are willing to pay a fee, in accord with Section 1236.1(c). [J-69-2012] - 17 Indeed, we have already said as much in Penn Jersey, where, in the course of addressing what records must be deposited with the prothonotary following the end of the year in accord with Section 1251, we held that the autopsy reports in dispute in that case were not available "[b]y the terms of Section 1251" until they are filed with the prothonotary. By the terms of Section 1236.1(c), however, the same records are rapidly available for a fee "for those who do not wish to wait until after the end of the year, and who are also willing to pay the charges associated with procuring it." Penn Jersey, 962 A.2d at 637. Respectfully, we believe the Commonwealth Court and the dissent have misconstrued Penn Jersey as supporting its importation of "discretion" from Section 1236.1 (a) to Section 1236.1(c). In our interpretation of Section 1236.1(c) as coexisting without conflict with Section 1251, and as providing a rapid means of access to the coroner's records, we did not recognize any discretion in the coroner. Contrary to the dissent's assertion, we did not conclude that Section 1236.1 gave the coroner discretion to release information sooner than the annual disclosure requirement. Dissenting Op. at 3. Moreover, as discussed above, the RTKL generally presumes that a record in the possession of a local agency is a public record, see 65 P.S. § 67.305, and defines a public record as "a record .. , of a local agency that ... is not exempt under Section 708. ." or otherwise privileged. 65 P.S. § 67.102. Section 708(b)(20) exempts a coroner's autopsy records from the definition of public record and the presumption, but provides that "[t]his exception shall not limit the reporting of the name of the deceased individual and the cause and manner of death." By omitting the last sentence of Section [J-69-2012] - 18 708(b)(20) the General Assembly could have exempted all coroner's records from disclosure under the RTKL, but instead it added the proviso, indicating its intent not to limit the coroner's reporting obligation with regard to the name of the deceased and the cause and manner of death. The Commonwealth Court did not give effect to the language of this section. Accordingly, the RTKL and Section 1236.1 (c) of the Coroner's Act each provide immediate access to cause and manner of death records. The RTKL provides the procedure for accessing those records that are available for immediate release for a fee pursuant to Section 1236.1(c). Additionally, consistent with the RTKL, Section 1236.1(c) authorizes the .coroner to charge limited fees for such records. See 65 P.S. § 67.3107(c) ("An agency may impose reasonable fees for official certification of copies if the certification is at the behest of the requester and for the purpose of legally verifying the public record."); id. § 67.3107(g) ("Except as otherwise provided by statute, no other fees may be imposed unless the agency necessarily incurs costs for complying with the request, and such fees must be reasonable. No fee may be imposed for an agency's review of a record to determine whether the record is a public record, legislative record or financial record subject to access in accordance with this act."). Because the requested record is not exempt from disclosure under the RTKL, it must be provided to Requester consistent with Section 1236.1(c). The order of the Commonwealth Court is reversed. [J-69-2012] - 19 Madame Justice Orie Melvin did not participate in the decision of this case. Mr. Chief Justice Castille, Mr. Justice Saylor, Madame Justice Todd and Mr. Justice McCaffery join the opinion. Mr. Justice Eakin files a dissenting opinion. JUDGMENT ENTERED: October 17, 2012 EI 'ne Hellen, Assistant Chief Clerk [J-69-2012) - 20 [J-69-2012] [MO: Baer, J.] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT HEARST TELEVISION INC., D/B/A No. 112 MAP 2011 WGAL-TV AND DANIEL O'DONNELL, Appeal from the order of Commonwealth Appellants Court at No. 95 CD 2010 dated 11-16-2010 affirming the order of the Cumberland County Court of Common v. Pleas, Civil Division, at No. 09-5832 civil term dated 12/23/2009. MICHAEL L. NORRIS, IN HIS OFFICIAL :ARGUED: May 9, 2012 CAPACITY AS CORONER OF CUMBERLAND COUNTY, AND THE PENNSYLVANIA OFFICE OF OPEN RECORDS, Appellees DISSENTING OPINION MR. JUSTICE EAKIN DECIDED: October 17, 2012 I respectfully dissent from the majority's finding there is no conflict between the sections of the Coroner's Act and the Right to Know Law at issue here, and from its conclusion the requested record in this case is not exempt from disclosure under the RTKL. I would hold § 1236.1(c) of the Coroner's Act gives the coroner discretion concerning whether to release a written report regarding cause and manner of death prior to the statutorily-mandated time period in § 1251, and therefore conflicts with § 708(b)(20) of the RTKL, which provides cause and manner of death reports are not exempt from the Act's access requirements. Because of this conflict, the Coroner's Act provisions control, and the requested record is exempt from disclosure under the RTKL. See 65 P.S. § 67.3101.1 (stating if RTKL's provisions regarding access to records conflict with any other federal or state law, RTKL's provisions shall not apply). The Coroner's Act provides two means of obtaining a report concerning the cause and manner of death. Under § 1251, a coroner is required to deposit all official records from the preceding year with the prothonotary by January 30 of the following year for inspection by any interested persons. 16 P.S. § 1251. Under § 1236.1(a), compliance with "[r]equests for examinations or other professional services [made] by other counties or persons," apart from the inspection of records permitted under § 1251, is left to a coroner's discretion. Id., § 1236.1(a). Section 1236.1 (c) permits a coroner to charge a fee for such "other reports and documents requested by nongovernmental agencies." Unlike the majority, I do not read § 1236.1(a)'s reference to discretion as solely applicable to that subsection; reading § 1236.1 as a whole, I would conclude subsection (a) bestows the discretion, and subsection (c) permits a coroner to charge a fee for his discretionary release of reports prior to the time mandated in § 1251. A majority of this Court concluded as much in Penn Jersey Advance, Inc. v. Grim, 962 A.2d 632 (Pa. 2009). In Penn Jersey, the issue was whether a coroner's autopsy report is an "official" record within the meaning of § 1251 and thus subject to that section's mandatory annual disclosure requirement. Id., at 637. In holding such a report constitutes an official record under the statute, we rejected the notion there was a conflict between § 1251, which allows access to autopsy reports free of charge if they are deemed "official" records, and § 1236.1(c), which allows a coroner to charge for autopsy reports. We noted § 1251 bears a time requirement, and observed § 1236.1 (c) does not contain such a requirement. Accordingly, we concluded, "Section 1236.1 merely provides a rapid means of procuring an autopsy report for those who do not wish to wait until after the end [J-69-2012] [MO: Baer, J.] - 2 of the year, and who are also willing to pay the charges associated with procuring it." Penn Jersey, at 637 (emphasis in original). Although the analysis in Penn Jersey was focused on the "official" nature of autopsy reports and did not involve the RTKL, the conclusion that §§ 1251 and 1236.1 do not conflict is instructive: the majority interpreted § 1236.1 as a faster means of obtaining the same information mandated to be disclosed under § 1251. The fact that "discretion" was articulated in subsection (a) but not subsection (c) was not determinative; the Court read the section in its entirety and concluded it gives a coroner discretion to release information sooner than the annual disclosure, coupled with the ability to charge a fee for such rapid disclosure. Thus, I agree with the Commonwealth Court's interpretation of Penn Jersey, and with its conclusion that immediate access under the RTKL would conflict with a coroner's discretion in § 1236.1(c) of the Coroner's Act. See Hearst Television, Inc. v. Norris, 8 A.3d 420, 427 (Pa. Cmwlth. 2010) ("[I]t would be inconsistent with Section 1236.1 of the Coroner's Act, which gives a coroner discretion regarding whether to release cause of death information before being required to do so under the Coroner's Act, to require a coroner to immediately release that same information upon request under the RTKL."). Having found a conflict between the RTKL and §§ 1236.1 and 1251 of the Coroner's Act, I would further conclude this conflict is sufFcient to trigger the RTKL's conflict provision. Requester contends the Commonwealth Court applied a new lenient standard of "inconsistency" instead of the "irreconcilability" required by the Statutory Construction Act. See 1 Pa.C.S. § 1933 (when general provision in statute "conflicts with ~ This author filed a concurring and dissenting opinion, agreeing with the conclusion that §§ 1251 and 1236.1 do not conflict, but disagreeing that all autopsy reports are part of a coroner's official records requiring annual filing and disclosure. Penn Jersey, at 638-39 (Eakin, J., concurring and dissenting). [J-69-2012] [MO: Baer, J.] - 3 a special provision in the same or another statute, the two shall be construed, if possible, so effect may be given to both; if conflict between two provisions is irreconcilable, the special provisions shall prevail"). Here, the Coroner's Act only requires disclosure of cause and manner of death reports by a coroner once a year; earlier disclosure is discretionary with the coroner. The provision of the RTKL_ requiring immediate disclosure of such reports upon request is thus not reconcilable with the Coroner's Act. Accordingly, the Commonwealth Court did not create a new, more lenient standard; it properly concluded the two provisions were contradictory, and as such, the RTKL does not apply. For these reasons, I would affirm the decision of the Commonwealth Court. [J-69-2012] [MO: Baer, J.] - 4