The Intelligencer Journal, Oct. 7

Court backs newspaper on computer seizure

By Jeff Hawkes
Intelligencer Journal

The state Supreme Court Oct. 6 reversed a judge’s order that Lancaster Newspapers Inc. turn over two reporters’ computers to the state attorney general.

In a 20-page opinion, the justices called the government’s attempt to seize the newsroom computers "unduly intrusive."

The opinion by Justice Thomas Saylor also noted the "potential chilling effect" the taking of reporters’ computers could have on sources providing confidential information.

Also, the justices ruled the attorney general must provide newspaper attorneys with an administrative document explaining the purpose of a grand jury investigation.

Lancaster Newspapers appealed to the Supreme Court in August after a judge supervising an investigative grand jury found the newspaper in contempt and imposed a $1,000 fine for each day it did not surrender the computers to the state.

The Supreme Court rulings arise from a probe begun last fall by the attorney general into county Coroner Dr. G. Gary Kirchner’s dealings with the press.

The attorney general engaged a statewide grand jury to look into whether Kirchner gave Intelligencer Journal reporters his password to a part of the county’s Web site restricted to law-enforcement and other authorized officials.

The grand jury has required witnesses to appear, but no charges have been filed.

Investigators for Attorney General Tom Corbett seized four newsroom computers earlier this year after the state Supreme Court in March ruled against Lancaster Newspapers. At that time the justices said they lacked jurisdiction because the judge supervising the grand jury had not found the newspaper in contempt.

When the attorney general this summer obtained a subpoena to seize two more computers, the newspaper refused to abide by the order and was found in contempt, providing grounds for an appeal to the Supreme Court.

"We agree with Lancaster Newspapers that measures were available to obtain the information subject to the investigation short of outright surrender of the hard drives to the Commonwealth," Saylor said in his opinion. "... the unavoidable effect (of the computers’ seizure) is that the essential 'filing cabinets' of the newspapers are transferred to the custody and control of the executive branch of government."

The justices said they don’t rule out the supervising judge appointing a neutral expert to examine the hard drives for its Internet history and report relevant findings to investigators.

Justice Ronald D. Castille dissented from the majority, writing that the supervising judge established sufficient safeguards to assure that state investigators wouldn’t "nefariously rummage about in the hard drives for information which was not the subject of the investigation."

The part of the Supreme Court's ruling Oct. 6 that requires the attorney general to turn over an administrative document to Lancaster Newspapers' attorneys may open the door to another legal challenge by the newspaper.

Newspaper attorneys contend a statewide investigative grand jury has jurisdiction only regarding suspected wrongdoing taking in place in two or more counties.

If the administrative document the newspaper attorneys may now examine shows the investigation is limited to Lancaster County, it may prompt another appeal to the Supreme Court, said George C. Werner Jr., an attorney for the newspaper.

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