Should pornographic e-mails exchanged by state employees on state computers be released to the public?
That was the question being hashed out in a Pennsylvania courtroom Wednesday.
Lawyers for the state Office of Attorney General told a panel of Commonwealth Court judges that the sought-after smutty exchanges among current and former OAG employees are not public records because they don’t document official agency activity.
“The question is: Was it sent in connection with commonwealth business?” said John Knorr III, chief deputy attorney general, who argued on behalf of the office in court.
But lawyers for the Philadelphia Inquirer, which requested the emails under the Right-to-Know law, said a number of factors about the messages “tip” them into the realm of public documents: their senders and recipients (state employees); the volume of the messages (said to be in the thousands); and the fact that they violate an office policy against passing around suggestive, pornographic, or obscene material.
“The very guts and heart of the Right-to-Know law is to prohibit secrets, to hold government officials accountable for their actions,” said lawyer Terry Mutchler, whose firm, Pepper Hamilton LLP, is arguing on behalf of The Inquirer. “For the court to hold otherwise in our view would be to say, ‘You get to do anything but what you’re supposed to be doing, and there’s no accountability.'”
Mutchler, the former director of the state’s Office of Open Records, said the case could settle a monumental question about the public release of personal records.
Some of the judges hearing the case raised questions about Attorney General Kathleen Kane’s inconsistent stance on the emails. Kane released some of them last year, but her office began fighting their full release.
More recently, Kane waffled on whether she would drop the legal challenge with The Inquirer, suggesting the courts could do more to free her from any adverse legal consequences. An office spokesman said Wednesday that Kane plans to reveal more emails “soon,” no matter how Commonwealth Court rules.
“She wants to be sure that she doesn’t violate any strictures that might come back to haunt her legally,” said spokesman Chuck Ardo.
Mutchler said it takes “a legal GPS to follow” Kane’s changing position on the release of the emails, and she accused the attorney general of acting in bad faith since the open-records dispute landed in state court. To that end, Mutchler asked the court to compel Kane’s office to pay the newspaper’s legal fees in the case.