Secret judicial ruling blocks release of sexually explicit emails
HARRISBURG — An unnamed judge issued an order blocking an open records law request by the Tribune-Review for emails and links to sexually explicit images reportedly shared by top staffers of the Attorney General's Office.
“Your Right-to-Know request cannot be responded to because a judge has issued a stay,” Renee Martin, acting communications director for Attorney General Kathleen Kane, said on Friday.
Martin said she could not divulge the judge's name or the court delaying the request.
It's not known how the records request landed in court.
The Trib filed the request on July 7, seeking “emails or email attachments” containing “pornographic images” sent by former and current office members on their official state email accounts.
The newspaper asked for such emails that may have been reviewed by Special Deputy Geoffrey Moulton, who examined more than 20 million deleted emails in a look at how then-Attorney General Tom Corbett handled the case of convicted pedophile Jerry Sandusky as attorney general. Corbett, a Shaler Republican, is seeking a second term as governor.
Kane directed staff members to recover the deleted emails.
“Obviously, the governor would not condone that. It's the first I've heard of it,” said Mike Barley, Corbett's campaign manager.
No one has asserted that Corbett received any of the reputed emails.
Corbett's office spokesman, Jay Pagni, declined comment, saying he was unable to reach others to address it.
Moulton could not be reached.
Sources tell the Trib the emails exist and that some contain sexually explicit materials intended as humor. They are described as a range of materials from joking comments and caricatures to images of nude adults and sexual situations.
No one interviewed would speak publicly about the emails.
Policy on computer use prohibits “communicating, accessing, viewing, downloading or storing materials on Office of Attorney General resources,” including “any suggestive, pornographic or obscene material.”
Corbett signed the policy as attorney general in 2006. It remains in effect, Kane's office said.
Pennsylvania's Right-to-Know Law process begins with a request to a government agency, which has five business days to respond with information or invoke a 30-day extension. The requester can appeal a denial to the Office of Open Records, which decides whether the record can be released. Either party can appeal that decision to the courts.
Kane's office requested a 30-day extension on the Trib's request, then informally asked for more time and negotiated Aug. 21 as a due date for a decision.
Melissa Melewsky, media law counsel for the Pennsylvania Newspaper Association, said if a judge ordered a stay, the office should provide a copy of the order or docket number.
“If they wanted to bypass the Office of Open records and file a declaratory action, they'd have to file in Commonwealth Court,” she said. “But that would be docketed, and it wouldn't be done by an anonymous judge.”
She was aware of only one case that went before a judge instead of the open records office.
The Pennsylvania State Employees Association wanted to protect members' home addresses from release under the law before anyone filed a request.
Circumventing the process is disturbing, Melewsky said. “When an agency doesn't follow a statute it's a matter of public concern.”
A criminal investigation or a grand jury probe also can block a request for information.
“I don't believe there are any (Freedom of Information Act) laws in the country that say when the information is embarrassing or difficult to release it should be closed,” said Gene Policinski, senior vice president of the First Amendment Center at the Newseum Institute.
He said it is rare for the court process to be cloaked in secrecy. Any reason not to disclose the material should be made public, he said.
“But absent public explanation or a public trail, people are left to speculate on whether or not this secrecy is in the best interest of the public,” Policinski said.
Generally, pornography isn't illegal if the images involve adults, said Wes Oliver, a Duquesne University Law School professor.
“If there's no aesthetic, scientific or artistic value to something the community would deem patently offensive, then theoretically it can be prosecuted. But given ever-increasing access to pornography, fewer and fewer things would be deemed patently offensive to the community,” Oliver said. “As a practical matter, most prosecutors don't bring such cases.”
Sandusky, 70, a former Penn State University assistant football coach, is serving a 30- to 60-year prison term for sexually abusing 10 boys. The case drew international attention and led to the firing of longtime football Coach Joe Paterno and unprecedented NCAA sanctions on the university.
To fulfill a campaign promise, Kane hired Moulton to review whether Corbett delayed the Sandusky investigation to get past the 2010 gubernatorial election. Moulton, a former federal prosecutor and law school professor, found that Corbett did not drag out the case for political reasons.
Kane, elected in 2012, is the state's first Democratic and first female attorney general.
Voters twice elected Corbett to the state's top law enforcement job. He served from 2005 to 2011.
Corbett's challenger in the November election is Democratic nominee Tom Wolf, a York County businessman.