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July 29, 1997


Appealed From No. Denial Dated August 1, 1996. State Agency Department of Corrections.

Before: Honorable Doris A. Smith, Judge, Honorable Dan Pellegrini, Judge, Honorable Jess S. Jiuliante, Senior Judge.

The opinion of the court was delivered by: Smith


FILED: July 29, 1997

Michael J. Travaglia petitions for review of the Department of Corrections' (DOC) denial of requests for access to documents pertaining to the Commonwealth's lethal injection method of execution in general and to the application of these procedures to Keith Zettlemoyer and Leon Moser in particular. Travaglia questions whether DOC's denial of permission to examine, inspect and copy such documents violated his rights under Sections 2 and 3 of the Act commonly known as the Right-to-Know Act, Act of June 21, 1957, P.L. 390, as amended, 65 P.S. §§ 66.2 and 66.3.

The legislature adopted lethal injection as the means of administering the death penalty in Pennsylvania by the Act of November 29, 1990, P.L. 572, 61 P.S. § 2121.1. That Act specifies the injection of a lethal quantity of an ulstrashort-acting barbiturate in combination with a paralytic agent. In May 1995, Zettlemoyer became the first person executed by lethal injection; in August 1995, Moser became the second person executed by this means. Travaglia is incarcerated under a sentence of death. In July and August 1995, Mark J. Lesko, attorney for Travaglia in a proceeding in federal court, made written requests to DOC under the Right-to-Know Act to inspect and copy records relating to the lethal injection death penalty. *fn1

In a letter dated August 1, 1996, the Chief Counsel of DOC denied possession of photographs or of documents relating to the process for determining dosages, reports of the testing of substances used, postmortem medical evaluations of Zettlemoyer and Moser and the methods considered and the process used by DOC in adopting lethal injection. The letter further denied access to all of the other specified documents, asserting that they did not constitute public documents or that, if they did, they were documents that would impair the personal security or reputation of individuals or that were otherwise privileged. In addition, the letter asserted that the request was an attempt to secure information that would not otherwise be subject to discovery in the ongoing litigation between Attorney Lesko's client and the Commissioner of DOC. *fn2


The Court must first address DOC's contention that Travaglia lacks standing to bring this appeal. DOC refers to Pa. R.A.P. 501, which provides that an appellant must be both aggrieved and a party to the action below. DOC asserts that it never denied any request from Travaglia; therefore he is not aggrieved and was not a party below, and the appeal should be quashed. In Statewide Bldg. Maintenance, Inc. v. Pennsylvania Convention Center Authority, 160 Pa. Commw. 544, 635 A.2d 691 (Pa. Commw. 1993), the Court refused to permit counsel simply to substitute on appeal as the requesting party, where a petition in equity alleged that the corporation bringing the action was a citizen of another state. DOC argues that the same rule against substitution applies here.

In a reply brief, Travaglia asserts that the context of several telephone calls at the time of the requests established that they were made by Attorney Lesko's law firm on behalf of Travaglia as their client. The Court, however, may not consider such factual averments outside of the record before it. Travaglia also argues that DOC's reference in its letter of response to alleged efforts by Attorney Lesko to obtain information not otherwise subject to discovery in Travaglia's action against the Commissioner indicates that DOC was aware that the requests for information were made on Travaglia's behalf. With this the Court agrees. DOC's reference in its response to possible discovery requests in another case would be a complete non sequitur unless DOC recognized that the request was being made on behalf of Travaglia. The Court rejects DOC's request to quash this appeal for lack of standing.


Travaglia first emphasizes that the purpose of all statutory interpretation is to ascertain and give effect to the intent of the legislature. Pennsylvania Financial Responsibility Assigned Claims Plan v. English, 541 Pa. 424, 664 A.2d 84 (1995). He notes that this Court has held that the intent of the Right-to-Know Act is to assure availability of governmental information by permitting access; a broad construction is given to the initial determination of whether a document is a public record under Section 1(2), which is to be tempered as an opposing party brings into play the enumerated exceptions. Tribune-Review Publishing Co. v. Allegheny County Housing Authority, 662 A.2d 677 (Pa. Commw. 1995), appeal denied, 546 Pa. 688, 686 A.2d 1315 (1996).

Section 1(2) of the Right-to-Know Act, as amended, 65 P.S. § 66.1(2), defines "Public Record" in part as follows:

Any minute, order or decision by an agency fixing the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons: Provided, That the term "public records" ... shall not include any record, document, material, exhibit, pleading, report, memorandum or other paper, access to or the publication of which is prohibited, restricted or forbidden by statute law or order or decree of ...

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