Review drops appeal of open records case against Judge Smith

The Daily & Sunday Review will not appeal further the denial by the state of the newspaper's right-to-know law request for access to the "inappropriate material" found two years ago on computers used by Bradford County Common Pleas President Judge Jeffrey Smith.

The Review's original request was denied by Bradford County this past Fall. The Review appealed the denial to the state's new Office of Open Records in Harrisburg. In a "final determination," the hearing officer ruled Nov. 10 that the public was not entitled to the information sought by the newspaper, and denied the appeal.

The next step would have been for the newspaper to appeal that second denial to Common Pleas Court. It had 30 days to do so. "It probably would be futile," Review Editor Ronald W. Hosie said on Monday.

A saving grace, according to Hosie, is that as a result of the newspaper's intervention, the county is not required to destroy or surrender the evidence in its possession, as sought by the judge.

Apparently due to a technicality, The Review's rebuttal to the response the county's Pittsburgh attorney submitted to the newspaper's appeal was not considered by the state office's hearing officer. Dena Lefkowitz, the hearing officer, ruled, "... [T]he appeal is denied and the county is not required to take any further action." The reason given was that the Review's appeal rebuttal was filed after a deadline and no extension of deadline had been requested. In a subsequent letter to the hearing office, Hosie asserted that he was not provided a copy of the response from the county's attorney until after the deadline had passed, and that in his answer, he did seek an extension, though he acknowledged it might have been worded clumsily. In his rebuttal, Hosie had asserted that the county's attorney had misstated his arguments. His letter has not been answered.

Nevertheless, based on conclusions of an attorney consulted by The Review, the decision was made to drop the matter. "From what I have been told, I am concerned that going into court would be expensive, not only for The Review but the county as well, and our chances of persuading a judge to rule against another judge, and in favor of a news outlet, given the facts, now including the denials by the county and the state, would not be great," Hosie said.

He also said, "This entire, lengthy process could have been avoided had Judge Smith simply allowed the non-judicial portions of the data on the computer disks be released to the public." The material was sexually oriented, according to confidential sources who told Hosie they had seen the material or had been briefed by someone who had.

The judge, though his attorney, had said his rights to privacy were at stake, and that the information sought, which is contained on a computer disk in the county's possession, either must "promptly" be destroyed or surrendered to the judiciary. The judge also had raised the issues of the separation of powers between the executive and judicial branches of government.

The county, which had said it was willing to release the material if its attorney cleared it, later cited a lengthy objection to releasing the material by a private attorney hired by the judge, and denied The Review's request based on several arguments. They included that the judiciary was covered only in a very limited way by the state's new open records law, that the material requested did not constitute a record under the law, and that to reveal the information sought would violate the judge's rights to privacy.

The judge's Scranton attorney, Sal Cognetti Jr., said in his nearly five-page objection that Judge Smith was committed to defending himself and prohibiting the material in question from being made public. In order to do this, the judge would pursue legal actions, ranging from civil to criminal - including suing personally the commissioners should the information be released, the attorney said.

On Monday, the judge was said to be unavailable. A request for comment on The Review's decision, left with his staff early Monday afternoon, had not been answered by the close of business.

County Commissioner Chairman Mark Smith declined comment.

Also on Monday, Hosie said the outcome underscored the difficulty of getting to the heart of some matters involving the conduct of elected officials, even though the new, tougher open records law went into effect in Pennsylvania this past January. "The new law is much better than the old law," Hosie said. "But, obviously, it still leaves a good deal to be desired."

As previously reported, Hosie had argued, "The legislature's purpose in enacting the bill, and that of the governor in signing it into law this year, was to make government in Pennsylvania transparent, so that citizens and taxpayers would be guaranteed a right to know the basis for how and why their governmental agencies do what they do.

"To have a public official 'totally contaminate' the Bradford County government's computer network, as then-Commissioner Chair Nancy Schrader stated publicly was the case in these circumstances - an action similar to what other county employees were terminated for - and then permit the official to hide behind a variety of legal maneuvers intended to intimidate and keep the public in the dark, is a gross violation of the spirit and the intent of the open records law and the county's own policy.

"When such actions occur, that in itself is a vivid red flag that there may be something very wrong."

Therefore, Hosie also argued:

"Public officials must not be allowed to hide their errant ways behind a blizzard of legal saber-rattling about civil or criminal investigations of officials who might have to go to the expensive trouble of defending themselves personally when they simply should be allowed to do the honorable job they were elected to do."