The Pennsylvania Supreme Court recently heard oral argument in a case that could drastically hamper the ability of reporters, defense attorneys and other citizens to get records from county prosecutors.

The case, Stacy Parks Miller, District Attorney v. County of Centre, will allow the court to decide whether district attorney offices are "judicial agencies" under Pennsylvania's Right-to-Know Law, 65 P.S. § 67.102. Organizations classified as "judicial agencies" are exempted from many of the public access and transparency requirements that apply to other government agencies. The case grew out of Right-to-Know requests from criminal defense attorneys seeking telephone records for Stacy Parks Miller, Centre County's district attorney, as well as her assistant district attorneys and several judges to see if prosecutors were having improper ex parte communications with the judiciary.

The county produced some phone records responsive to the requests, but Parks Miller sought an injunction to prevent further releases. The judges separately filed for similar relief. Judge Stewart L. Kurtz of the Huntingdon County Court of Common Pleas, sitting by special assignment in Centre County Court, sided with Parks Miller and the judges, barring the county "from making any response to any request made pursuant to the Pennsylvania Right-to-Know Law for judicial records relating to the" the district attorney or judges.

The county appealed to the Commonwealth Court, which upheld Judge Kurtz's order regarding the judges but reversed as to the district attorney. While the Right-to-Know Law defines a "judicial agency" as a "court of the Commonwealth or any other entity or office of the unified judicial system," the unified judicial system itself and various related entities and positions are separately defined in 42 Pa. C.S. § 102. Therefore, the court looked to section 102 to help resolve the issue. After parsing the definitions, the court determined that district attorneys are not "personnel of the [unified judicial] system," but, rather, are merely "related staff." Based in large part on this determination, the court concluded that a district attorney's office does not constitute a "judicial agency."

Before the Pennsylvania Supreme Court, Parks Miller argued that the Commonwealth Court misinterpreted section 102 in holding that district attorneys and their staff are only "related" to a judicial agency, but not actually part of one. In her brief, she stressed that district attorneys are essentially supervised by the court: "[T]hey are primarily comprised of attorneys [with some nonattorney staff], they operate almost exclusively within the courts of the unified judicial system, and regularly interact in close proximity with judges and other members of the unified judicial system. Indeed, the criminal justice system of the Commonwealth cannot function without the district attorney."

The county, meanwhile, argued that the Commonwealth Court properly held that a district attorney's office is not a "judicial agency." It noted that the Right-to-Know Law defines the Office of the Attorney General - which is the state's top law enforcement agency, while district attorneys prosecute crimes at the county level - as a "Commonwealth agency" instead of a judicial one. The Right-to-Know Law also distinguishes between judicial agencies and district attorneys by setting up a separate appeals process for denials of requests for law enforcement records. The county further argued that allowing district attorneys to be part of judicial agencies could trigger constitutional problems regarding the separation of powers, stating "The Pennsylvania Constitution confirms that district attorneys are not entities or offices of the unified judicial system but rather county officials responsible for criminal prosecutions. This Court must correct the District Attorney's misconceptions that she is on the same 'team' as the judiciary and subject to the judiciary's supervision."

At oral argument on April 5, 2017, some justices questioned whether it was proper to classify county prosecutors as part of the unified judicial system. "Your argument goes to the idea that any officer of the court comes within the unified judicial system when they're . . . in the courtrooms," Justice Debra McCloskey Todd said. "But if that's the case then, your argument would apply to every attorney licensed in the Commonwealth, and that surely can't be."

However, Justice Christine Donohue noted that district attorneys and public defenders are specifically referenced in the statutory definition of the unified judicial system.

The Pennsylvania NewsMedia Association with the American Civil Liberties Union, the Public Defender Association of Pennsylvania, the County Commissioners Association of Pennsylvania and the Pennsylvania Office of Open Records, which administers the Right-to-Know Law, all filed amicus briefs opposing Parks Miller's appeal. For instance, the Pennsylvania NewsMedia Association and the ACLU wrote that a decision in favor of Parks Miller exempting her from many of the Right-to-Know Law's requirements would gut "an essential tool for the public to critically analyze district attorneys' performance."

It could take several months for the Pennsylvania Supreme Court to issue its decision in this case.