A Pa. county is charging people to search court documents — an unusual and undue burden, experts say

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HARRISBURG — A Western Pennsylvania county is imposing a $10.50 “search fee” on public requests for court documents, a levy that open records advocates say adds an unusual and undue financial barrier to constitutionally required access.

Between May 2021 and May 2022, Washington County collected $1,026.50 from the fee, according to a Right-to-Know response obtained by Spotlight PA.

The people who paid included local journalists and criminal defendants.

Open records experts told Spotlight PA they’re unaware of another Pennsylvania county with such a fee. Eric Feder, president of the Pennsylvania State Association of the Prothonotaries and Clerks of Courts, said the same but noted the association doesn’t formally track such information.

Washington County officials offered unclear justifications for the charges in interviews.

Clerk of Courts Brenda Davis said the search fee, which is collected by her office, was established prior to her taking on the role in 2020. Davis, who has warred openly with the county’s commissioners over Alternative Sentencing Program fees and fines, and who was sentenced to 15 days in jail by a county judge for refusing to transfer juvenile case files from her office, said she could not justify the fee.

Davis also said she is unable to remove or change it, a claim disputed by the Administrative Office of Pennsylvania Courts (AOPC), which oversees Pennsylvania’s county courts.

Melissa Melewsky of the Pennsylvania NewsMedia Association, a trade group representing media outlets statewide, including Spotlight PA, called the fee “problematic” and “inconsistent with the requirements” found in the public access policy governing Pennsylvania’s county courts.

Section 6 of the policy, which was put in place by the Pennsylvania Supreme Court, explicitly outlines the fees that clerks of court can charge for copies of court documents — up to 25 cents a page — but says nothing about a search fee covering the administrative task of retrieving such records. (Washington County charges both.)

“There is commentary under Section 6 that suggests ‘reasonable fees’ can be imposed, but what that actually means, who determines reasonableness, and how a challenge could be brought are not addressed in the policy,” Melewsky added.

The AOPC, the administrative arm of the state’s Supreme Court, is led by Geoff Moulton, a high court appointee. The AOPC has taken the position that it and the Supreme Court are restricted in their ability to enforce the state’s public access policy, at least where independently elected clerks of courts are concerned.

In a phone call with Spotlight PA, an AOPC spokesperson used the phrase “separation of powers.” The office declined to elaborate.

Melewsky would like the court to explore the issue further: “What I would say is that it is reasonable to conclude that if the court has the power to impose a rule governing access to judicial records, it also has the power to enforce it, even if that power is not explicitly spelled out in the policy,” she said.

Bruce Ledewitz, a Duquesne University law professor and an expert on Pennsylvania’s high court, agreed. “It’s not true that the Pennsylvania Supreme Court could not order the clerk of court to make the information available without a fee,” if a challenge of such a fee was brought before the court and deemed credible, he said.

“District attorneys are independently elected, but there are a million rules governing what they have to do, issued by the Pennsylvania Supreme Court.”

Washington County Court Administrator Patrick Grimm said search fees collected by Davis are deposited monthly into the county’s general fund, a key source of revenue for her office, and “are not segregated … nor earmarked for anything other than use by the county for general operations.” He declined to answer additional questions via AOPC spokespeople in Harrisburg.

Melewsky believes the search fee is excessive, as the administrative costs associated with fulfilling records requests are already supported by taxes and copy fees that more than pay for the raw materials involved.

But the options members of the public have to challenge an access fee like Washington County’s are directly proportional to their means, Melewsky explained, a key reason so many go unaired and unaddressed.

“People can push back, but the state’s public access policy doesn’t spell out an appeal process,” she said. “You’d have to go to court. More than likely you’d have to get an attorney and pursue litigation. And that’s a time-consuming and costly process.”

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