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MCMULLAN v. WOHLGEMUTH ET AL. (10/12/71)

decided: October 12, 1971.

MCMULLAN
v.
WOHLGEMUTH ET AL., APPELLANTS



Appeals from decree of Commonwealth Court, No. 287, Commonwealth Docket, 1971, in case of John McMullan, James Steele, and Philadelphia Newspapers, Inc. v. Helene Wohlgemuth, Secretary of Welfare of the Commonwealth of Pennsylvania, Clarence Jenkins, Executive Director of Philadelphia Public Assistance, and the Commonwealth of Pennsylvania, and Jane Doe, intervenor.

COUNSEL

Harold E. Kohn and Douglas G. Dye, with them David H. Marion, Leonard Barrachk, Jonathan M. Stein, and Harvey N. Schmidt, for plaintiffs.

Marx S. Leopold, Assistant Attorney General, with him J. Shane Creamer, Attorney General, for defendants.

Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Jones, Mr. Justice Roberts, and Mr. Justice Barbieri concur in the result. Concurring and Supplemental Opinion by Mr. Chief Justice Bell.

Author: O'brien

[ 444 Pa. Page 565]

Philadelphia Newspapers, Inc., which owns and publishes The Philadelphia Inquirer, John McMullan, Executive Editor of The Inquirer, and James Steele, a reporter employed by The Inquirer, all of whom will be collectively referred to as "the Inquirer" in this opinion, filed a complaint in equity against Helene Wohlgemuth, Secretary of Welfare of the Commonwealth, Clarence Jenkins, Executive Director of the Philadelphia County Board of Public Assistance, and the Commonwealth of Pennsylvania, all of whom will be collectively referred to as "the Commonwealth". The complaint sought to enjoin the Commonwealth from withholding from the Inquirer the records containing the names, addresses and amounts of public assistance of certain welfare recipients in Philadelphia, and to enjoin the Commonwealth from denying the Inquirer the right to inspect, examine, extract and photocopy the records of welfare recipients in Philadelphia. Thereafter, one Jane Doe, a welfare recipient, individually and on behalf of all others similarly situated, sought leave to intervene as a defendant. The Commonwealth Court held a hearing and took evidence on an application for a preliminary injunction. That court allowed the intervention of Jane Doe on the condition that she file an affidavit disclosing her identity and with the further stipulation that the affidavit of identity be impounded so that the name of the intervenor would not be revealed to other than authorized personnel of the court. The court also granted a preliminary injunction enjoining the Commonwealth temporarily "from withholding from [the Inquirer] a list to be prepared by the [Commonwealth] containing the names, addresses, and amounts of public assistance paid recipients in two percent (2%) of the cases in the City-County of Philadelphia, said list to be prepared by computer at the expense of the [the Inquirer]. . . ." The temporary injunction

[ 444 Pa. Page 566]

    decree further required the Inquirer to supply the court with the names and addresses of not more than ten fulltime employees of the Inquirer, who would be the only persons to have access to the list required to be furnished, or to any of the names, addresses and amounts contained in the list. Those ten persons were the only ones permitted by the decree to investigate to determine if abuses of the public assistance program were involved in the payments shown by the list. The decree further forbade the ten employees of the Inquirer to represent themselves as employees of the Commonwealth or otherwise misrepresent their identity or purpose. In addition, the temporary injunction decree permitted the Inquirer to publish an article or articles reporting the results of its investigation, but specifically forbade the publication of any names, addresses or amounts revealed as the result of the investigation without prior approval of the court.

The Commonwealth and the intervenor appealed from the grant of the preliminary injunction, and the Inquirer appealed from the order allowing intervention, as well as the restrictions contained in the preliminary injunction as to the scope of the required Commonwealth disclosure and the restrictions on publication. We granted supersedeas on the Commonwealth's application in order that the status quo might be maintained pending disposition of the instant appeals.

The litigation at bar had its genesis in an apparently general feeling of dissatisfaction in both official and unofficial quarters with the operation of the public welfare system of the Commonwealth. The Inquirer, as well as other media of public information in Philadelphia and elsewhere in the Commonwealth, were interested, and properly so, in the various procedures being undertaken by the Welfare Department and investigations by committees of the General Assembly into the

[ 444 Pa. Page 567]

    operations of the Welfare Department as they dealt with the payment of public assistance grants to Pennsylvania residents. The Inquirer determined to make a survey of public assistance payments in Philadelphia in order to determine whether fraud existed or whether other misapplications of public funds were occurring within the system. It, therefore, requested that the Commonwealth make available to it the lists of the names and addresses of all public assistance recipients in Philadelphia and the amounts received by each. It was upon the Commonwealth's refusal to make such information available to the Inquirer, and, in fact, the Commonwealth's refusal to permit inspection of its records by the Inquirer, that this litigation was commenced.

The Inquirer argues that it is entitled to the lists of names and addresses and of amounts of public assistance paid to welfare recipients under the Pennsylvania "right-to-know" act, act of June 21, 1957, P. L. 390, § 1, 65 P.S. § 66.1 et seq. Section 1 of the act, 65 P.S. § 66.1(2), defines public records which may be inspected and copied by members of the public as a matter of right, and that definition is clearly broad enough to encompass the records sought here. The definition, however, contains a proviso which excludes from its terms "any report, communication or other paper, the publication of which would disclose the institution, progress or result of an investigation undertaken by an agency in the performance of its official duties or any record, document, material, exhibit, pleading, report, memorandum or other paper, access to or publication of which is prohibited, restricted or forbidden by statute law or order or ...


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