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CAPITAL CITIES MEDIA, INC. v. CHESTER

February 1, 1985

CAPITAL CITIES MEDIA, INC., t/d/b/a THE WILKES-BARRE TIMES LEADER and ROBERT SCHEIER, Assistant City Editor, Plaintiffs
v.
JAMES W. CHESTER, Regional Director, Northeast Region, Pennsylvania Dept. of Environmental Resources and MARK R. CARMON, Community Relations Coordinator, Northeast Region, Pennsylvania Dept. of Environmental Resources, Defendants



The opinion of the court was delivered by: NEALON

 Plaintiff Capital Cities Media, Inc. brought this civil action pursuant to 42 U.S.C. §§ 1983, 1985; 28 U.S.C. §§ 1331, 1343 and the First and Fourteenth Amendments of the United States Constitution. Pendent jurisdiction was invoked by plaintiff to allege state causes of action arising under Article 2, § 7 of the Pennsylvania Constitution and 65 Pa. Cons. Stat. Ann. § 66.1 [Right to Know Act]. Named as defendants are Pennsylvania Department of Environmental Resources (DER); Nicholas DeBenedictis, Administrative Head and Secretary of DER; James W. Chester, Regional Director of the Northeast Region of DER; and Mark R. Carmon, Community Relations Coordinator for the Northeast Region of DER.

 I. FACTS

 The essence of the complaint is that plaintiff has been denied access by DER to various documents *fn1" pertaining to the giardiasis contamination in particular water sources in the surrounding areas of Northeast Pennsylvania. Plaintiff asserts a "right to inspect and copy DER documents and records it has requested from these defendants in their official capacity since these DER documents and records are the official records of the DER, the public agency for which the defendants work and are themselves public records." Complaint, Document 3 of the Record at para. 8. A Motion to Dismiss and a brief in support thereof was filed by defendants August 30, 1984. A brief in opposition dated December 11, 1984 was filed by plaintiff to which defendants replied December 21, 1984. The motion is now ripe for disposition. For the reasons set forth below, the defendants' Motion to Dismiss will be granted.

 Defendants assert that the complaint should be dismissed for lack of jurisdiction and failure to state a claim upon which relief can be granted. The court agrees.

 A. First Amendment

 Plaintiff alleges "a right to that information which is part of the public record and the government has the burden of establishing the non-public nature of the information sought." Plaintiff's Memorandum of Law in Opposition to defendants' Motion to Dismiss, Document 20 of the Record at 17 n.9. Thus, while plaintiff maintains it is not claiming a general right of access to governmental information under the First Amendment, plaintiff alleges that the withholding of the information it seeks does violate the First Amendment. See id. The court fails to see the distinction. Alleging that the withholding of documents violates the First Amendment necessarily implies an allegation that plaintiff has a right to access to those documents. In support, plaintiff cites John Milton, James Madison, James Monroe and Thomas Jefferson for the proposition that a right of access to governmental information is fundamental to our system of government. Plaintiff fails to cite, however, any opinion from the Supreme Court of the United States or our Third Circuit Court of Appeals which has held or implies that the First Amendment confers a right of access to governmental information in the context presented here.

 In light of the absence of direct precedential support of plaintiff's position, a review of recent Supreme Court decisions is instructive on this issue. The issue of whether there is a First Amendment right of access to governmental information has been presented to the Supreme Court in a variety of contexts since the Court's pronouncement that "news gathering is not without its First Amendment protections." Branzburg v. Hayes, 408 U.S. 665, 707, 33 L. Ed. 2d 626, 92 S. Ct. 2646 (1972).

 In the prison setting, the Court has rejected the press' contentions that journalists have a right to conduct face-to-face interviews with specific inmates. See Pell v. Procunier, 417 U.S. 817, 94 S. Ct. 2800, 41 L. Ed. 2d 495 (1974) (Constitution does not require government to accord press special access to information not open to public generally); Saxbe v. Washington, 417 U.S. 843, 41 L. Ed. 2d 514, 94 S. Ct. 2811 (1974) (prohibition of personal interviews with inmates does not abridge freedom of press that First Amendment guarantees).

 Later, in Houchins v. KQED, 438 U.S. 1, 57 L. Ed. 2d 553, 98 S. Ct. 2588 (1978), the Court, again in a prison context, denied the media's challenge to a county prison's decision to close its doors and deny access to an area of the prison in which an inmate had committed suicide. Indeed, in Houchins, the Chief Justice writing the plurality opinion stated: "Neither the First Amendment nor the Fourteenth Amendment mandates a right of access to governmental information or sources of information within the government's control." Id. at 15. Justice Stewart, concurring, wrote: "The First and Fourteenth Amendments do not guarantee the public a right of access to information generated or controlled by government, nor do they guarantee the press any basic right of access superior to that of the public generally." Id. at 16.

 In Gannett Co., Inc. v. Depasquale, 443 U.S. 368, 61 L. Ed. 2d 608, 99 S. Ct. 2898 (1979) the issue arose in the context of criminal trials. While upholding the trial judge's decision to exclude press and public from a pretrial hearing on a motion to suppress alleged involuntary confessions of defendants charged with robbery and murder, the court found it unnecessary to decide whether the First Amendment conferred a right to attend criminal trials. *fn2" This question was decided in Richmond Newspapers Inc. v. Virginia, 448 U.S. 555, 65 L. Ed. 2d 973, 100 S. Ct. 2814 (1980) when a plurality of the Court held that the First and Fourteenth Amendments did confer a right, although not absolute, upon the press and public to attend criminal trials. Two years later, in Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982) the holding of Richmond Newspapers, supra, was re-affirmed when a majority of the court held that a Massachusetts statute, which required mandatory exclusion of press and public during the testimony of a minor sexually-abused victim, violated the First and Fourteenth Amendments. Justice Brennan wrote:

 
Two features of the criminal justice system, emphasized in the various opinions in Richmond Newspapers, together serve to explain why a right of access to criminal trials in particular is properly afforded by the First Amendment. First, the criminal trial historically has been open to the press and general public. . . . Second, the right of access to criminal trials plays a particularly significant role in the functioning of the judicial process and the government as a whole. Public scrutiny of a criminal trial enhances the quality and safeguards the integrity of the fact finding process, with benefits to both the defendant and to society as a whole.

 Most recently, the Supreme Court held that the guarantees of open public proceedings in criminal trials extended to proceedings for the voir dire examination of potential jurors. Press-Enterprise Co. v. Superior Court, ...


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