# PA Office of AG v. Supervising Judge of the 35th Statewide Investigating Grand Jury

> Supreme Court of Pennsylvania · August 26, 2015

URL: https://www.frixlaw.com/law-library/cases/2831057

## Case

- **Court:** Supreme Court of Pennsylvania
- **Decided:** August 26, 2015
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** per curiam
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

PENNSYLVANIA OFFICE OF : No. 171 MM 2014
ATTORNEY GENERAL, :
:
Petitioner :
:
:
v. :
:
:
SUPERVISING JUDGE OF THE THIRTY- :
FIFTH STATEWIDE INVESTIGATING :
GRAND JURY, :
:
Respondent :

ORDER

PER CURIAM

AND NOW, this 26th day of August, 2015, upon the request of the supervising

judge for removal of the seal from all matters involving the 35th Statewide Investigating

Grand Jury and the investigation of Attorney General Kathleen Kane which have been

lodged in this Court, save for grand jury materials such as testimony, exhibits, and in

camera proceedings, and based on the supervising judge’s assurance that there are no

present grand jury secrecy concerns relative to such unsealing, it is hereby ORDERED

that the seal is lifted, in part, upon such terms.
M.D. MisC. Dkt FI1eInSupfOmeCOU
:.. • 71 OI4 NOV 1 O 2014

UNSEALED PER ORDER OF
THE COURT DATED
AUGUST 26, 2015

IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

PENNSYLVANIA OFFICE OF
ATTORNEY GENERAL, No. MM2014
Petitioner
V.

SUPERVISING JUDGE OF THE FILED UNDER SEAL
THIRTY-FIFTH STATEWIDE
INVESTIGATING GRAND JURY,
Respondent

PENNSYLVANIA OFFICE OF ATTORNEY GENERALS PETITION
FOR REVIEW OF ORDERS ENTERED BY SUPERVISING JUDGE OF THE
THIRTY-FIFTH STATEWIDE INVESTIGATING GRAND JURY
ON AUGUST 27,2014, SEPTEMBER 17, 2014, AND OCTOBER 30,2014

TO THE HONORABLE CHIEF JUSTICE AND JUSTICES OF THE SUPREME COURT OF
PENNSYLVANIA:

AND NOW, comes the Office of Attomey General of the Commonwealth of

Pennsylvania by Kathleen G. Kane, Attorney General of the Commonwealth of Pennsylvania,

who files this petition seeking the Supreme Court of Pennsylvanias review and vacation of the

determination of the Supervising Judge of the Thirty-Fifth Statewide Investigating Grand Jury

encompassed by the four related and interconnected Orders dated August 27, 201 4, September

1Recelvet fn Suptœe Coutlt

NOV 102014
17, 2014, and October 30, 2014 (collectively, the protective order). In support thereof, the

following is averred:

JURISDICTION

1. This Court has jurisdiction over the instant petition pursuant to 42 Pa.C.S.A. §

722(5) and Pa.R.A.P. 3331(a)(3).

2. The petition for review is timely-filed because: (a) OAG had 10 days from the

date of entry of the Order at issue t to file the petition, see Pa.R.A.P. 3331(a); Pa.R.A.P.

1512(b)(3);(b) the Order at issue was filed on October 30, 2014, rendering a filing deadline of

November 10, 2014;2 and (c) OAG filed the petition on November 10, 2014.

PARTY SEEKING REVIEW

2. The Petitioner is the Office of Attorney General of the Commonwealth of

Pennsylvania(OAG).

GOVERNMENT UNIT RESPONSIBLE FOR
DETERMINATION SOUGHT TO BE REVIEWED

3. Respondent is the Supervising Judge of the Thirty-Fifth Statewide Investigating

Grand Jury, the Honorable William R. Carpenter(the Supervising Judge).

DETERMINATION SOUGHT TO BE REVIEWED

4. OAG seeks this Courts review of the Supervising Judges Order dated October

30, 2014, which denies OAGs motion for reconsideration of the Order entered by the

Supervising Judge dated August 27, 2014 as amended twice thereafier on September 1 7, 201 4.

See copy ofthe October 30, 2014 Order, attached as Exhibit A.

The Order at issue rendered final a previously-entered order that was amended twice. See infra.
2 Because the 10th
day following October 30, 2014 was Sunday, November 9, 2014, the filing
deadline is the next business day, Monday, November 10, 2014. See 1 Pa.C.S.A. § 1908.
2
5. In other words, the determination sought to be reviewed encompassesfour related

and interconnected orders:

a. the August 27, 2014 Order, which states, inter alia, that: (i) OAG
shall refrain from any involvement in or access to the investigative efforts of the
Special Prosecutor in Notice No. 123; (ii) OAG and its employees shall have no
access to the transcripts, exhibits, and other information pertaining to Notice No.
123; (iii) OAG employees shall refrain from engaging in or soliciting any act of
obstruction, intimidation, or retaliation against any witness summoned by the
Special Prosecutor in Notice No. 123; and (iv) any person who engages in an act
of obstruction, intimidation, or retaliation against a witness summoned by the
Special Prosecutor in Notice No. 123 may be prosecuted pursuant to 18 Pa.C.S.A.
4955;3
§

b. the September 17, 2014 Order, which amended the August 27,
2014 Order to permit a second hearing -- this one with the ostensible involvement
of OAG -- to be conducted on the subject of allegations of obstruction, witness
intimidation, and/or retaliation; 4

c. another September 17, 2014 Order, which amended the August 27,
2014 Order and indicated, inter alia, that only the following persons are subject to
the prohibition of obstruction, intimidation, or retaliation of any witness and
criminal prosecution therefore: (i) any person who has been sworn to Grand Jury
secrecy;(ii) any person who has or had access to any Grand Jury information; and
(iii) any person associated with the J. Whyatt Mondesire investigation and
proceedings;5

d. the October 30, 2014 Order, which renderedjìnal the amended
protective order.

See copies of the August 27, 2014 Order and the two September 17, 2014 Orders, attached as

Exhibits B, C, and D,respectively.

For purposes of clarity and ease of reference, this Order is referred to hereinafter as the initial
protective order.

Prior to the entry of the initial protective order, the Supervising Judge conducted an in camera
exparte hearing that excluded OAG and its employees completely.

For purposes of clarity and ease of reference, the initial protective order as amended by the two
September 1 7, 2014 Orders is referred to hereinafter as the amended protective order.

3
STATEMENT OF OBJECTIONS TO THE DETERMINATION

Background

6. On June 6, 2014, the Philadelphia Daily News published an article describing a

review by OAG of a prior Grand Jury investigation. See copy of the on-line version of the

article, attached as Exhibit E.

7. The Supervising Judge appointed Thomas Carluccio, Esquire as Special

Prosecutor to investigate this development pursuant to Notice of Investigation No. 1 23 and

authorized him to use the resources of the Thirty-Fifth Statewide Investigating Grand Jury.

8. OAG, which conducts all other investigations in the Thirty-Fifth Statewide

Investigating Grand Jury, has made every effort to accommodate the Special Prosecutors needs

and has cooperated with him fully.6

9. On August 26, 2014, with no prior notice to OAG or any of its individual

employees, with no specific allegations or explanation, and with no opportunity for OAG to

respond to any allegations of misconduct, the Supervising Judge issued the initial protective

order under the authority of 1 8 Pa.C.S. § 4954 (along with a related sealing order). See Exhibit

B.

6
The Special Prosecutors allegation to the contrary contained in a prior filing in this Court in a
related matter is incorrect. By way of example only, prior to issuance of the protective order
OAG: (a) bent over backwards to assist the Special Prosecutor in orienting himself to the
facilities and process utilized by the Thirty-Fifth Statewide Investigating Grand Jury; (b)
performed all scheduling, subpoena issuance, logistical, and clerical tasks requested of it by the
Special Prosecutor; (c) ensured that its employees appeared and testified as required by the
Special Prosecutor; and (d) on at least one occasion, complied with the specific, direct, and
unambiguous instruction of the Special Prosecutor to, on his behalf inform witnesses called by
him for his investigation in Notice No. 1 23 of their rights and obligations under the law. The
combined effect of the Supervising Judges Order that OAG have no involvement in the Special
Prosecutors investigation along with the Special Prosecutors insistence that OAG employees
perform some of his work for him has been to place OAG employees in a patently untenable
position.
4
1 0. As noted supra, that Order stated, inter alia, that:(a) OAG shall refrain from any

involvement in or access to the investigative efforts ofthe Special Prosecutor in Notice No. 123;

(b) OAG employees shall have no access to the transcripts, exhibits, and other information

pertaining to Notice No. 123;(c) OAG employees shall refrain from engaging in or soliciting any

act of obstruction, intimidation, or retaliation against any witness summoned by the Special

Prosecutor in Notice No. 123; and (d) any person who engages in an act of obstruction,

intimidation, or retaliation against a witness summoned by the Special Prosecutor in Notice No.

123 may be prosecuted pursuant to 18 Pa.C.S.A. § 4955.

1 1. OAG moved for reconsideration of the initial protective order, and argument on

the motion was conducted on September 16, 2014.

12. At the time of that argument, OAG was informed for the first time that an ex

parte, in camera hearing had been conducted and that the initial protective order had issued as

a result.

13. On September 17, 2014, the Supervising Judge issued an Order granting in part

OAGs motion for reconsideration, granting a hearing on the subject of...allegations of

obstruction, witness intimidation, and/or retaliation, but not establishing a date for said hearing.

(Exhibit C at 1).

14. The Order failed to specify any person or conduct that was at issue in connection

with the allegations.

1 5. The Order failed to explain, elaborate, or otherwise provide a context for the

phrase allegations of obstruction, witness intimidation, and/or retaliation.

16. The Order failed to identify the source ofthe vague allegations.

5
17. Also on September 17, 2014, the Supervising Judge issued another Order granting

in part OAGs motion for reconsideration, this one amending Paragraphs 2 and 5 of the initial

protective order to indicate that only the following persons are subject to the initial protective

orders prohibition on obstruction, intimidation, or retaliation against witnesses in the Special

Prosecutors investigation as well to the penalty of prosecution for violation of 42 Pa.C.S.A. §

4955:

1. Any person who has been sworn to Grand Jury secrecy;

2. Any person who has or had access to any Grand Jury information;

3. Any person associated with the J. Whyatt Mondesire proceedings and
investigation.

(Exhibit D at 1).

18. The foregoing amended language is not Iimited to any particular grand jury or

grand jury information -- past, present, or future.

1 9. The amended protective order applies to and directly affects hundreds of OAG

employees past and present residing throughout the Commonwealth, innumerable individuals not

affiliated in any manner with OAG,as well as the Attorney General and her predecessors.

20. People who have been sworn to grand jury secrecy include the Attorney General,

OAG employees, employees of other law enforcement agencies who participate in grand jury

investigations, court reporters, and members of the grand jury.

21. People who have had access to grand jury information include not only the

foregoing persons, but also witnesses to grand jury investigations and their counsel.

22. The initial protective order was issued pursuant to 18 Pa.C.S.A. §4954, which

permits [a]ny court with jurisdiction over any criminal matter to issue protective orders afier

a hearing and in its discretion, upon subsiantial evidence.

6
23. The Supervising Judge directed the Special Prosecutor to serve the initial

protective order on OAG only (Exhibit B at 2 ¶ 6) and did not provide for service on all of the

persons subject to its terms.

24. Notwithstanding the fact that many persons unaffiliated with OAG are subject to

the protective order, the Supervising Judge explicitly prohibited the disclosure of the contents of

the protective order to anyone outside OAG under penalty of contempt.

25. On September 19, 2014, OAG filed in this Court an Application for Special Relief

pursuant to 42 Pa.C.S.A. §sS 502, 726 and Pa.R.A.P. 3309.

26. On October 2, 2014, this Court dismissed the Application for Special Relief as

moot based on the indication that there would be a hearing, and directed that the hearing take

place.

27. Subsequently, the Supervising Judge scheduled the hearing requested by OAG for

October 17, 2014.

28. On October 17, 2014, two months after the initial protective order had been

issued, OAG and the Special Prosecutor appeared before the Supervising Judge for the hearing

as directed by the Supreme Court and as required by 18 Pa.C.S. § 4954•7

29. The Office of Attorney General attempted to comply with the mandate of the

Supreme Court and engage in a hearing as understood under the plain meaning of the word

heaing.

Despite request, OAG has been denied a copy of the transcript for the October 1 7, 2014
hearing. Accordingly, the factual representations contained herein regarding what transpired
at the proceeding are necessarily -- and regrettably -- based solely on the recollections of the
individual employees of OAG who were present at the proceeding.
7
30. To that end, OAG sought leave of the Supervising Judge to subpoena Frank G.

Fina, Esquire (Fina) and E. Marc Costanzo, Esquire (Costanzo), whom OAG understood to

be the alleged victims/accusers ofintimidation in connection with Notice No. 123.

31. OAG sought to question Fina and Costanzo to ascertain the nature and extent of

the intimidation that they have alleged, as well as to test the veracity and credibility of their

accusations.

32. The Supervising Judge denied that request.

33. When the Court refused OAG the opportunity to question its apparent accuers on

the record, OAG asked the Court for a copy of transcript for the ex parte in camera hearing that

preceded the issuance of the initial protective order in an alternate attempt to gain an

understanding of the genesis of the protective order.

34. The Supervising Judge denied that request.8

35. Having been denied the opportunity to question the alleged victims as well as the

opportunity to review a transcript of the prior hearing, the attorneys representing OAG at the

hearing were precludedfrom ascertaining thejàctual basisfor ihe proteciive order.

36. Finally, OAG counsel sought leave of the Judge to call as a witness the Special

Prosecutor, who was present for the ex parte, in camera hearing and presumably heard the

testimony ofFina and Costanzo.

37. The Supervising Judge denied that request.

8
Notably, the Supervising Judge had previously attached the relevant transcript to a pleading he
had filed in the Supreme Court, which in turn made available to OAG. When the Supervising
Judge discovered, two days later, that OAG had received the transcript from the Supreme Court,
he ordered OAG to return the copy or delete it prohibited OAG from talking about or using the
contents of the transcript. In essence, OAG was directed by the Supervising Judge to erase the
memories of any OAG employee who had lawfully seen the transcript and to engage in an
ongoing pretense that the contents ofthe transcript had not been disclosed and were unknown.

8
38. OAG attempted to subpoena and question a journalist with first-hand personal

knowledge regarding: (a) the reason for the timing of the Right-to-Know Law (RTKL)

requests relating to the email accounts of Fina and Costanzo submitted to OAG; and (b) the

source of the information that triggered that request.

39. This particular testimony would be probative of whether there was a coniiection

between the RTKL requests relating to the email accounts of Fina and Costanzo on the one hand

and the testimony ofFina and Costanzo in Notice No. 123 on the other.

40. That connection is apparently at issue given that the October 30, 2014, Order

specifically relies on the factual finding that, The timing of the Right-to-Know Request naming

Frank Fina and Mark Costanzo among others were submitted to the Attorney Generals Office at

the time they were subpoenaed and/or scheduled to testify. (Exhibit A at 1-2).

41. Rather than permit OAG to fully develop the record on this issue, the Supervising

Judge rejected OAGs attempt to subpoena the witness and chose instead to ground his protective

order in untested inferences.

42. The foregoing deprivation of witnesses and foundational information by the

Supervising Judge prevented OAG from proceeding in any meaningful way: it had no way of

determining precisely what allegations had been leveled, whether rebuttal was necessary, and if

so what witnesses to call and what questions to ask.

43. Hamstrung by the Supervising Judges restrictive rulings,9 OAG was limited to

the presentation of a single witness, a Chief Deputy Attorney General, who testified about the

pornographic content of certain emails discovered on OAG computer equipment.

The Supervising Judges finding in its October 30, 2014 Order that the Attorney General
called only one witness... (Exhibit A at 3) is misleading because it omits the salient fact that the
Judge repeatedly denied OAGs counsels requests to present other witnesses testimony.
9.
44. On October 30, 2014, the Supervising Judge entered an Order denying OAGs

motion for reconsideration ofthe amended protective order. See Exhibit A.

Objections

45. The statutory provision on which the Supervising Judge relied reads as follows:

Any court with jurisdiction over any criminal matter may, after a hearing
and in its discretion, upon substantial evidence, which may include hearsay or the
declaration of the prosecutor that a witness or victim has been intimidated or is
reasonably likely to be intimidated, issue protective orders, including, but not
limited to, the following:

(1) An order that a defendant not violate any provision of this
subchapter or section 2709 (relating to harassment) or 2709.1
(relating to stalking).

(2) An order that a person other than the defendant, including, but
not limited to, a subpoenaed witness, not violate any provision of
this subchapter.

(3) An order that any person described in paragraph (1) or (2)
maintain a prescribed geographic distance from any specified
witness or victim.

(4) An order that any person described in paragraph (1) or (2)
have no communication whatsoever with any specified witness or
victim, except through an attorney under such reasonable
restrictions as the court may impose.

18 Pa.C.S. § 4954.

46. By its terms, Section 4954 grants to the court with jurisdiction the discretion to

enter a protective order and to decide the terms of a protective order, such that review of a

protective order would be for an abuse of discretion. See Commonwealth v. Sandusky, 70 A.3d

886, 897 n.9 (Pa. Super. 2013).

47. An abuse of discretion will be found when a lower court has reached a

conclusion which overrides or misapplies the law, or where the judgment exercised is manifestly

10
unreasonable, or the result of partiality, prejudice, bias or ill-will. Commonwealth v. Alicia, 92

A.3d 753, 760(Pa. 2014)(citation omitted).

48. To the extent that this case presents a question of law, such as the requirement of

a hearing, the Courts standard ofreview is de novo and the scope ofreview is plenary. ld.

49. The Supervising•Judge abused his discretion because the protective order violates

the state and federal due process rights of the Penrisylvania Attorney General, hundreds of OAG

employees, and innumerable people not affiliated with OAG.

50. In the words ofthis Honorable Court:

The due process clauses of the United States and Pennsylvania constitutions
embodÿ the principle offundamental fairness, entitling everÿ individual to be
free from arbitrarÿ or oppressive government conduct. This Court has found
that the guarantees associated with the due process clause of the federal
constitution are generally coextensive with those under the Pennsylvania
Constitution.

Commonwealth v. Wallace, 97 A.3d 310, 320(Pa. 2014)(citations omitted)(emphasis added).

5 1. The essential elements of due process of law are notice and opportunity to be

heard and to defend in an orderly proceeding adapted to the nature of the case before a tribunal

having jurisdiction of the cause. Fiore v. Com., Bd. ofFinance and Revenue, 633 A.2d 111 1,

1114(Pa. 1993).

52. As a matter of fundamental procedural due process, an individual may not be

deprived of a constitutionally protected interest without a hearing, and a hearing requires notice

and an opportunity to be heard; it follows that the opportunity to be heard must be at a

meaningful time and in a meaningful manner. See Mathews v. Eldridge, 424 U.S. 319, 333

(1976); Commonwealth v. Maldonado, 838 A.2d 710, 714(Pa. 2003).

11
53. OAG was not provided with prior notice that there had been an allegation of

misconduct and/or request for issuance of a protective order in connection with the Special

Prosecutor s investigation.

54. Although the protective order purports to apply to any person who has been

swom to grand jury secrecy, has or had access to any grand jury information, and/or is

associated with the J. Whyatt Mondesire proceedings and investigation, notice of this

protective order was provided afier thefact and only to the governmental agency OAG.

55. The order proscribes behavior and threatens criminal sanctions upon countless

unidentified individuals both within and without OAG, yet not a single one of them has been

served with notice of the order.1°

56. The protective order was conceived and initially filed in a remarkably partisan

fashion, the product of a one-sided in camera, ex parle proceeding that deprived those who were

targeted and eventually subjected to the order of any opportunity to address the allegations that

provoked the Supervising Judge to enter the order.

57. Rather than fully develop a factual record in a disinterested and even-handed

fashion, the Supervising Judge inexplicably accepted the covert allegations of OAGs accusers at

face value.

10
There is no reasonable basis for concluding that every person encompassed by the protective
order is likely to engage in intimidating activity or retaliatory conduct based on testimony before
the Grand Jury, especially since (a) the vast majority of OAG employees have no contact with
the Grand Jury and would be completely unaware of the Special Prosecutors investigation,(b)
eveh among those employees who have contact with the Grand Jury, most would be completely
unaware of the Special Prosecutors investigation (as just one example, it is difficult to imagine
that a Medicaid Fraud investigator in Pittsburgh would have any knowledge of, or interest in, a
leak investigation involving the Norristown Grand Jury), and (c) there have been no reports of
any contact with witnesses apart from the two incidents involving OAG agents discussed infra.

12
58. Although the Supervising Judge subsequently acquiesced to OAGs request for a

hearing after the fact, the process eventually afforded to OAG was hollow and meaningless.

59. As recounted supra, OAG was prohibited from accessing the transcript of the

initial ex parte proceeding and was denied knowledge of the specific factual allegations which

formed the basis for the protective order.

60. The deprivation of this information by the Supervising Judge prevented OAG

from proceeding in any meaningful way: it had no way of determining precisely what

allegations had been leveled, whether rebuttal was necessary, and if so what witnesses to call and

what questions to ask.

61. In addition, the Supervising Judge: (a) precluded OAG from calling the purported

victims/accusers as witnesses and probing the nature, veracity, and credibility of their claims;

and (b) rejected OAGs attempt to subpoena and question a journalist with first-hand personal

knowledge directly relevant and probative to an apparent allegation of witness intimidation.

62. The Supervising Judge denied OAG, its employees, and the others affected a

constitutionally adequate hearing on the subject ofthe protective order.

63. To date, OAG is still unaware of the precise nature of any allegation of

misconduct giving rise to the issuance of the protective order, and has been left to speculate in

that regard.

OAG is aware generally of: (a) an allegation that two agents behaved in an inappropriate
manner towards Fina and Costanzo at the OAGs grandjury suite on August 26, 2014; and (b)an
allegation that recent Right to Know Act submissions by the press to OAG are linked to the
Special Prosecutors investigation. The former appears to be a basis for the protective order
because the order was issued the day after Fina and Costanzo appeared, i.e. August 27, 2014.
The latter appears to be a basis for the protective order because the Supervising Judge alludes to
it in his October 30, 2014 Findings of Fact and Conclusions of Law. See Exhibit A. Any such
contact between the witnesses and the agents cannot reasonably constitute intimidation given that
OAG agents work on the premises where the grand suite is located and because both
jury
13
64. The foregoing constitutes the kind of arbitrary or oppressive government

conduct that is prohibited by the Pennsylvania and United States Constitutions. See Wallace, 97

A.3d at 320.

65. The order itself is intolerably vague: OAG employees and others are prohibited

from engaging in obstruction, intimidation, and retaliation in connection with the Special

Prosecutors investigation, but because the nature of that investigation is entirely secret, the

terms obstruction, intimidation, and retaliation exist in a vacuum that renders them utterly

cryptic.

66. The order supplies no discernable context for its prohibition; without such

context, a person subject to the order cannot know what action might constitute an infraction.

67. Such an order violates the notion of fundamental faimess in which our system of

justice is deeply rooted. See Commonwealth v. Burno, 94 A.3d 956, 966(Pa. 2014).

68. The order also infringes on the First Amendment rights of all affected.

69. An order issued in the area of First Amendment rights must be couched in the

narrowest terms that will accomplish the pin-pointed objective permitted by constitutional

mandate...the order must be tailored as precisely as possible to the exact needs of the case.

Carroll v. President and Com rs ofPrincess Anne, 393 U.S. 175, 183 (1968).

Attorney Fina and Attorney Costanzo are career prosecutors who have worked with, directed,
and supervised OAG agents on many occasions. The protective order constitutes an abuse of
discretion because any conduct of the agents cannot reasonably be construed as an act of
intimidation, obstruction, or retaliation. Moreover, the conduct of the agents cannot reasonably
be attributed to every employee of OAG. The Protective Order also constitutes an abuse of
discretion because there is no evidence that the agents supervisors were aware that they would
engage in intimidation, obstruction, or retaliation, or that they had engaged in such conduct in the
past, and so the conduct ofthe agents cannot reasonably be attributed to OAG as a whole.

14
70. The Supervising Judges protective order sweeps broadly and appears to

encompass speech relating to any person, subject, or event associated with the Special

Prosecutor s investigation.

71. The Supervising Judge has apparently banned communication both within and

without OAG regarding Fina, Costanzo, the J. Whyatt Mondesire proceedings, and other

unknown and unknowable matters relating to the investigation.

72. Because only the Supervising Judge and Special Prosecutor know the nature of

the investigation, the persons subject to the protective order must curtail virta11y all speech out

of fear that they will unwittingly commit a violation.

73. The protective order constitutes an abuse of discretion because the scope of the

order, in terms of both the persons subject to the order and the conduct covered by the order, is

far broader than necessary to protect any witness before the Grand Jury.

74. Finally, the protective order violates the Separation of Powers Doctrine of our

federal and state constitutions because it improperly infringes on OAGs ability to fulfill its

constitutional law enforcement mandate.

75. By way of illustration only, to the extent that perjury or obstruction of the

administration of law has been committed by witnesses or others in connection with the Special

Prosecutors investigation, the order purports to render OAG powerless to investigate and

prosecute those responsible.

76. To the extent that grand jury material has been leaked to the public from the

Special Prosecutors investigation in violation of grand jury secrecy rules, the order purports to

constrain OAG from investigating and prosecuting those responsible.

15
77. To the extent that witnesses in the Special Investigation may have committed

crimes or other misconduct unrelated 10 Notice 123, the order purports to eliminate OAG s

power to investigate andprosecute.

78. Finally, the Protective Order constitutes an abuse of discretion because persons

who violate the Order are subjected to the jurisdiction of the Court for purposes of a prosecution

under 18 Pa.C.S. § 4955, which permits, inter alia, prosecution for other, substantive offenses

and for contempt of court, and allows for a warrantless arrest, 18 Pa.C.S. § 4955(a)(1), (a)(2),

(b), and there is no substantial evidence supporting the exercise of such jurisdiction.

STATEMENT OF RELIEF SOUGHT

79. OAG requests this Court to enter an Order granting this Petition for Review and

vacating the Orders entered by the Supervising Judge of the Thirty-Fifth Statewide Investigating

Grand •Jury on August 27, 2014, September 17, 2014, and October 30, 2014.

16
CONCLUSION

WHEREFORE,the Pennsylvania Office of Attorney General, through Kathleen G. Kane,

Attorney General, respectfully requests that this Honorable Court enter an Order granting this

Petition for Review and vacating the Orders entered by the Supervising Judge of the Thirty-Fifth

Statewide Investigating Grand Jury on August 27, 2014, September 17, 2014, and October 30,

2014, or grant such other relief as the Court may deem appropriate and proper.

Respectfully submitted,

I4/THLEEN G.
Attorney General
Commonwealth ofPennsylvania
OFFICE OF ATTORNEY GENERAL
16t Floor-Strawberry
Square
Harrisburg, PA 17120
(717) 705-0098
(Fax)(717) 783-5431

Date: November 10, 2014

17
VERIFICATION

The facts recited in the foregoing Petition for Review are true and correct to the best of

my knowledge and belief This statement is made with knowledge that a false statement is

punishable by law under 18 Pa. C.S. § 4904(b).

By:
KÁTHLEEN G. E
Attorney GeneralL/
Commonwealth of Pennsylvania

OFFICE OF ATTORNEY GENERAL
16 Floor-Strawberry Square
Harrisburg, PA 17120
(717)705-0098
(Fax)(717) 783-5431

Date: November 10, 2014

18
EXHIBIT A
IN THE COURT OF COMMON PLEAS
MONTGOMERY COUNTY,PENNSYLVANIA

IN RE:. : SUPREME COURT OF PENNSYLVANIA
NO. 176 M.D. MISC. DKT. 2012
THE THIRTY-FWE STATEWIDE
MONTGOMERY COUNTY
INVESTIGATING GRAND JURY : M.D. 1424-2014

NOTICE NO. 123

SEALING ORÐER

AND NOW, this 3Oth day of October, 2014, it ìs hereby ORDERED, that the

attached Order of October 3O , 2014 be filed under seal with the Clerk of Courts of

Montgomery County until further Order ofthis Court.

BY THE COURT:

WILLIAM R. CARPENTER, , J.
Supervising Judge
IN THE COURT OF COMMON PLEAS
MONTGOMERY COUNTY,PENNSYLVANIA

IN RE: : SUPREME COURT OF PENNSYLVANIA
NO.•176 M.D. MISC DKT.2012
THE THIRTY-FIVE STATEWIDE
MONTGOMERY COUNTY COMMON PLEAS
INVESTIGATING GRAND JURY : M.D. 1424-2014

• NOTICE NO.123

ORDER

AND NOW,this 3Oth day ofOctober, 2014, after a Hearing on the MOTION OF TFIE
OFFICE OF ATTORNEY GENERAL FOR RECONSIDERATION OF PROTECTIVE
ORDER DATED AUGUST 27, 2014 (as amended); said Motion is DENIED.

BY THE COURT:

WILLIAM R. CARPENTER, J.
Supervising Judge

Copies sent on October 30, 2014
By First Class Mail to:
Attorney General Kathleen Kane
Erik L. Olsen, Esquire
Laura A. Ditka, Esquire
Thomas E. Carluccio, Esquire
IN THE COURT OF COMMON PLEAS
MONTGOMERY COUNTY,PENNSYLVANIA

IN RE: ¡ SUPREME COURT OF PENNSYLVANIA
: NO.176 M.D. MISC DKT.2012
THE TfflRTY-FIVE STATEWII)E
: MONTGQMERY COUNTY COOPLEAS
LNVESTIGAT1NG GRAND JURY : M.D. 1424-2014

• : NOTICE NO.123

FINDINGS OF FACT AND CONCLUSION OF LAW

FINDINGS OF FACT:

Prior to the issuance ofthe Protective Order:

1. The identity of anyone subpoenaecl by the Special Prosecutor was widely known
within the Attomey General s Office.
2. The time and location ofthose witnesses appearing before the Grand Jury was also
widely known within the Attomey Generals Office.
3. The Attorney General was also acquiring copies of the Notes of Testimony presented
by the Special Prosecutor to the• Grand Jury, in a situation where the Attorney
Generals Office was the subject ofthe investigation.
4. Grand Jury witnesses were confronted as they arrived to testify before the Grand
Jury. They were subjected to conduct of an intimidating nature.
5. Subsequent to the issuance ofthe Protective Order the above conduct has been
abated.
6. The Grand Jur operates within one of the office buildings of the Attorney General.
Grand Jury scheduling and issuance of subpoenas are necessarily done with the
clerical employees of the Attomey General. Accordingly the Attomey General and
her ernployees know when, where and which witnesses are appearing before the
Grand Jury.
7. Here the Attorney General and her employees are the subject of the investigation into
the leaking of secret Grand Jury information to the newspapers.
8. This Court has been furnished with substantial evidence, information and testimony
in carnera that fully supports the issuance of and the maintaining of the Protective
Order
9. The Cõurt conducted a hearing on the Attorney Generals Request to Vacate the
Protective Order on October 1 7, 201 4. At that hearing, the Attorney General called
only one witness who in no way provided any reason or just cause to vacate the
Protective Order.
10. The timing ofthe Right-to-Know Request naming Frank Fina and Mark Costanzo
among others were submitted to the Attorney General s Office at the time they were
subpoenaed andlor scheduled to testify.
1 1. In her Motion to Quash Grand Jury Subpoena the Attorney General through
privately retained counsel submitted that because she was not sworn to secrecy with
regard to prior Grand Juries ...she could not as a matter of law be in Contempt of
Court with regard 10 any disclosure related to that Grand Jury proceeding.

12. This Court finds based upon substantial evidence as a fact that:
A. The Protective Order is necessary to protect the secrecy ofthe Statewide
Investigating Grand Jury proceedings;
B. The Protective Order is necessary to maintain and ensure the integrity of
the Grand Jury process and;
C. The Protective Order is necessary and appropriate to deter Grand Jury
witness intimidation and retaliation.

CONCLUSIONS OF LAW:

The Protective Order is necessary and appropriate. The Attorney General has shown no cause to
vacate the Protective Order or to amënd it further.

BY THE COURT:

WILLIAM R. CARPENT
Supervìsing Judge
EXHIBIT B
IN TIIE COURT OF COMMON PLEAS
MONTGOMERY COUNTY,PENNSYLVANIA

IN RE: : SUPREME COURT OF PENNSYLVANIA
NO. 176 M.D. MISC. DKT.2012
THE THIRTY-F1VE STATEWIDE
MONTGOMERY COUNTY COMMON PLEAS
TNVESTIGATING GRAND JURY : M.D. 1424-2014

NOTICE NO. 123

SEALING ORÐER

AND NOW, thìs 27th day of August, 2014, it is hereby ORDERED, that the

attached Order of August 27, 2014 be filed under seal with the Clerk of Courts of

Montgomery County until further Order ofthis Court.

BY THE COURT:

WILLIAM R. CARPE ER, J.
Supervising Judge
IN TITE COURT OF COMMON PLEAS
MONTGOMERY COUNTY,PENNSYLVANIA

IN RE: : SUPREME COURT OF PENNSYLVANIA
NO.176 M.D. MISC DKT.2012
THE THIRTY-FIVE STATEW1DE
: MONTGOMERY COUNTY COMMON PLEAS
INYESTIGATING GRAND JURY : M.Ð.1424-2014

• : NOTICE NO. 123

ORDER

AND NOW,this 27th day ofAugust, 2014, it is hereby ORDERED,pursuant to

1 8 Pa.C.S. 4954 (relating to protective orders), that:

1. The Office ofthe Attorney General, except upon specific authorization by

this Court or the Special Prosecutor, shall refrain from any involvement in,

or ac;cess to, the investigative efforts ofthe Special Prosecutor.

2. Employees ofthe Office ofthe Attorney General shall refrain from

engaging in, or soliciting, any act ofobstruction, intimidation or retaliation

against any witness summoned by the Grand Jury in the Special

Prosecutor s investigation.

3. A11 transcripts of Grand Jury testimony shall be given only from the

stenographer or their einployer directly to the Supervising Judge and the

Special Prosecutor, no copy shall be given to the Attorney Generals

Office.
4. Employees ofthe Office ofthe Attorney General shall not have access to

transcripts ofproceedings before the Grand Jury or Supervising Judge,

exhibits, or other information pertaining to the Special Prosecutors

investigation. A11 information related to the work of the Special

Prosecutor shall be kept in the custody ofthe Special Prosecutor and

Supervising Judge.

5. Any person, including employees ofthe Office ofthe Attorney General,

who engage in any act of obstruction, intimidation or retaliation against a

witness sumrnoned by the Grand Jury in the Special Prosecutors

investigation may be prosecuted as set forth in 18 Pa.C.S. 4955 (relating

to violation oforders) and any other applicable provisions ofthe Crimes

Code ofPennsylvania.

6. The Special Prosecutor shall serve a copy of this Order upon the Office of

the Attorney General.

7. The contents ofthis Order are sealed, and shall not be disclosed (either

verbally or in writing) by the Office ofthe Attorney General to any

individual outside ofthe Office ofthe Attorney General under penalty of

contempt of court.
,-4

BY THE COURT:

WILLIAM R. CARPENTE J.
Supervising Judge

Copies sent on August 27,2014
By First Class Mail to:
Kathleen G. Kane, Pennsylvania Attorney General
Thomas E. Carluccio, Esquire
EXHIBIT C
INTHE:COURT OF COMMON .PLEAS
:MONTGOMERY COUNTY,.IENNSYLVANi:
IN.RE: S.UPREME COURT OF PENNSYLVANIA:

::
•:: NO. 176 M.D•. MISC. DKT.2012
THE THIRTY-FIFTH STATEWIDE
•: MOr.rLG.ÓMERY COUNTY COMMÕN PLEAS
INVESI IGÀT1NG GRAND JURY M D 2644-2012
NOTICENO;.123

ORDER

AN ÕW,thiš: dy f Sptenber, 20•1 4, it. iš:hrby ÕRiËREI t1t the.ãttched.,.

filed on Septernbr 2O4, bç and is herby sealed

WILLLAM R CARPENTER
Sperisìig iudgc
Thirtÿ-Fifth Stt.wid Iistiatin
Grand Jury
IN• THF.COURT OF COMMON PLEAS
MONTGOMFRY COUN[Y,PENNSYLVANIA

IN RE: SUPREMECOtJRT OF PENNSYLVANIA:

::
NO 176 M D MISC DKT 2012
THE THIRTY-FIVE STATEWIDE
MON I GOMERY COUN I Y COMMON PLEAS
;LNV.ESTIGA:TÏNG: GRAND JZURY : M.D.U1242O14

NOTI.CE NO.123

ORIER

AND•NOW.this i7.th day Öf.Septemhei, 20:14,. inthe exrise cfits discreti.õn aftr
an in camera l.earíng ancl findìng; o substantial eviderìcç, this Çõurt išsüed a Protectiie:
Oider;
And upon consideration of the Motion for Reconsideiation filed by the Office of
Attorney General relating to the Order of Court issued August 27, 2014, and after
Arguiïìent,
IT IS ORDERED that a furtheî heaiing ielatcd to the issuance ofa protective ordei
pursuant to 1.8. Pa.C.S. § .4954 shall be conducted on: a. date: to bç agreed upon by the
Attoiney General and the Special Froseutoi in the Charnbers ofthe Supervising Judge in
the::Grand Jury suite. The s.Llbject of the. hearing is :aJ:içgatiQfls of o.bstruction, witness
intirnidatiõn, and/orretaliatíon.
B THE. COURT:

WILLI.AM R. CARPENTR, J.
Supervising .Judge

Copies.sent n ::September 17,. 2014
By First Class Mail to
Thõms E..Carluçcio, Esquire
Janes B arker; E.squire
EXHIBIT D
IN THE COURT OF ÇOMMON.PLEÁS
.MONTGOMERY.COUNTY,.PENNSYLVANTA

IN RE•: : SUPREME C.OURT OF PENNSYLVÄNIA
. : NOlÌ.D.MIŠC..T.2Ó12
FHE THIRTY-FIFTH STATEWIDE
MONTGOMERY COUN1 Y COMMON PLEAS
JNVESTIGATING GRANI) JURY M D 2644-2()12

: NOTICE NO. 123.

OJDER

ANÙ NOW ths tL day• oSeptemher, 2Õ14,it ïsi. hrby Q11RED that th.attached.,
. . ..
filed on..Septembet _,2014,.be andis.herebÿ sca1eI.

WILLIAM...R..CAR.FENTER
Supervising Tudge
1 hirty-FifTh Statewide Investigating
Grand.Juiy
IN THE COURT OF COMMON PLEAS
MONTGOMERY COUNTY,PENNSYLVANLA

IN RE: : SU1REME COURT OF PENNSYLVANLA
: NO. 176 M.D. MISC DKT.2012
THE THIRTY-FIVE STATEWII)E
: MONTGOMERY COVNTY COMMON PLEAS
INVESTIGATING GRAND JURY : M.D. 1424-2014

NOTICE NO. 123

ORDER

AND NOW,this l7th day ofSeptember, 2014, in the exercìse ofitsdiscretion after
an iri camera hearing and a finding of substantial evidence, this Court issued a Protective
Ordei•;
And upon consideration of the Motion for Reconsideration filed by the Office of
Attorney General relating to the Order ofCourt issued August 27, 2014,
TT IS ORDERED that the Motion is GRANTED in part as to Paragraphs 2 and 5 of
said Order, and the following persons only shall be subject to Paragraphs 2 and 5 of said
Order:
11. Any person who has been sworn to Grand Jury secrecy.
2. Any person who has or had access to any Grand Jury information.
3. Any person associated with the J. Whyatt Mondesire proceedings and
investigation.
Additionally, Paragraph 7 of said Order is modified to allow comrnunication
regarding the Ordei• with counsel for a pei•son subject to the Order, for purposes of appeal,
and for any other, sirnilar purpose required by Iaw.
BYTHE COURT:

WLLIÄM.R. CAR.PE.N! ER, J.
Supervising Judgç

Cópies. s.ent on Septern.ber.17,2O .4
.ByFirstlCiass Mail to:
Thomas E. Carlucciõ, Esquire.:
Jarnes Barker, Esquire
EXHIBIT E
State A.G. probed Philly NAACP leader Mondesires finances 5 years ago Page 1 of 5

Monday, Novernber 10, 2014 Mernber Logio: Sign ln l Register f g

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State A.G. probed Philly NAACP
leader Mondesires finances 5 years
ago
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1,tttest News Video

More nideos:
J. Vdryatt Mondesire. fomrer Preoiderrt oftlre PlIiladYlphia Chapter aftlle NAACP 011 Avgasl 10. 2000 (Daord Maialetli/
Slaffplrotogropher)
CHRIS BRENNAN, Daily News StafI Wr1terbrennac,phlllynews.com,
2I5-854-5973
LAST UPDATED: Tharsday. Jane 5. 2014. 9:45 PM
llost Viewett Nell.s Stories:

STATE ATTORNEY General Kathleen Teen pullsPhilly cop
DAILY NEWS Kane is reviewing a 2009 grand-jury from burning squad
car
investigation of J. Whyatt Mondesire, former head of the
NAACP in Philadelphia, and one of his employees, according
to documents obtained by the Daiiy News.
Bouncers shoot man
at Phila. strip club
Mondesires employee, Harriet Garrett, and her daughter
pleaded guilty in 2010 to stealing nearly $220,000 in state
grant money for a job-training program. Garrett was
sentenced to a minimum of Six months in jail and ordered to
Another teacher
pay restitution. Her daughter got 18 months probation. assaulted at Bartram

A 2009 memo written by then-Deputy Attomey General
VVilliam Davis Jr. says investigators uncovered what
appeared to be questionable spending of state money by Kanes car crash
Mondesire. derailed testimony
again
Kane, a Democrat, is now trying to determine what happened 1
with the Mondesire investigation. Gov. Corbett, a Republican,
was the attorney general at the time. Merchants say
cigarette tax is a
business-killer
MORE COVERAGE

http://www.philly.com/philly/news/20140606_State_A_G probed_Philly... 1 1/10/2014
State A.G. probed PhiIly NAACP leader Mondesires finances 5 years ago Page 2 of 5

Pollce probe shootlng at upper Montco complex
Chrlstle chief of staff subpoenaed

Mondesire, 64, says he was never questioned and denies any
financial wrongdoing.

The 2009 Davis memo detailed for his bosses what had been
uncovered about Mondesire and Garrett, who worked at the
Philadelphia Sunday Sun, a weekly newspaper Mondesire
publishes.

A nonprofit called Next Generation Community Development
Corp., which is operated by Mondesire, held a state-
government grant•for a jobs-training program in 2004 and
2005, but handed it off to Garrett, who ran another nonprofit
called Creative Urban Education Systems, or CUES, _AIso on lhjlly.cr.in
according to the Davis memo. BUSINESS:
Pizza Hut revamp:
Mondesire was listed as chairman of the CUES board, the Curry crusts, spinach
topping
memo noted, while Garrett served as the treasurer for Next
Generations board.

Davis wrote his memo to then-Chief Deputy Attorney General HEALTH:
The 5 best exercises
Frank Fina and then-Senior Deputy Attorney General E. Marc for runners
Costanzo.

Corbett, as attorney general, named Fina in 2006 to head a
new public-corruption unit and Costanzo to work on cases for SPORTS:

Trat,eI Deals the unit in the Philadelphia region. New winter agenda
for Phillies
Fina and Costanzo now work in a similar unit for District
Attorney Seth Williams.

ln the memo, Davis wrote: ENTERTAINMENT:
Stcphen A. Smith to
* Next Generations bank-account records, obtained with broadcast from
a UPenn
S160-8185 - SC: 4-Star grand-jury subpoena, showed deposits of $1.3 million in
Hilton Head lsland Resort,
Save 30% government grants in a one-year period.
See all travel deals F000:
Another $521,000 in the account came from political Watch Bar Rescue
LISTEO IIYTRAVEIJOO campaigns, rent payments and the intermingling of money make over a South St.
SOron tnre,. tOes eadoorral bar
from the Sunday Sun, which is owned and operated by
Mondesire, the memo said.

lVeckly Circulars * Next Generation paid $2,273 to the Philadelphia Club, .IOBS:
a
How should I manage
private and exclusive club in Center City. my workload while
Im on vacation?
* Next Generation spent tens of thousands, writing checks
to
pay Mondesires American Express bill for clothes, food,
lodging gas and entertainment and a loan from Mellon Bank. Sfoy Corrrrecied
RACK ROOM SHOES:
There were also checks written to Mondesire and to cash. Gel lhe tatest PhiIly.co,n Oa:Iy Headl,nes nelesletler
Fall for Bootsl delieered to yoLn email. Sign up no.v!
VALILI UNVIL NOV 19 * Next Generation wrote checks for $169,960 Charles
to and
Enter emall address 10 s,gn up
Claudia Tasco and their company, C&C Construction.

1 (Charles Tasco is the son of City Councilwoman Marian Atreody a ph,lly.corn me,sber? O Yes O No

Tasco, a friend and political ally of Mondesires for more than
three decades.)
BUYTWO 3 DAILY NEWS
* $6,431 in CUES money was given Mondesire
TARGET USA: to for what
Buy Two, Get One Free Garrett called consulting. That type of expense was not
All Video Games
THIS ÆEK ONLY allowed, according to the rules of the grant. FOR THËCÓMPLETE
DAILY NEWS EXPERIENCE,
See MOÆ Circulars. * ln various correspondence between Garrett and
Mondesire
discovered by investigators, she questioned payments of
iOlN OR LOGIN NOW>
more than $70,000 he made 10 Claudia Tasco.

* CUES paid $1,099 for health insurance for
Mondesire.

http://www.philly.com/philly/news/20140606_State_A_G probed_Philly... 1 1/10/2014
State A.G. probed Philly NAACP leader Mondesires finances 5 years ago Page 3 of5

Davis wanted to question Mondesire - and possibly
subpoena him for sworn grand-jury testimony - about Garrett,
CUES and Next Generation.

Never questioned

Mondesire, a former /nquirer reporter who served as the top
aide 10 the Iate U.S. Rep. Bill Gray, said no one from the
A.G.s Office ever questioned him.

We didnt use any money for personal gain, Mondesire said.

He said that he has not seen the A.G. Offices documents and
twice declined an offer from the 0a11y News to review them.

Mondesire said C&C Construction worked on four properties,
including the NCP headquarters and his newspaper office,
where the Next Generation non-profit is also located.

We bought supplies with my American Express card for
construction, he said.

They never asked me a single question back in 2009. We
rehabbed the buildings. We spent money buying stuff for the
buildings, construction and paying off developers.

Garrett declined to comment about the investigations. Her
daughter did not respond to requests for comment.

The May 2010 news release about Garretts arrest featured
Corbett laying out the charges.

Corbett did not respond this week to two questions: Was he
briefed on the Mondesire investigation and did he play a role
in deciding what happened with that probe?

Mondesire was suspended by the NAACPs national
headquarters in April after he feuded publicly with board
members about the finances of the locaf chapter and Next
Generation.

Those board members - Sid Booker, Donald Ducky Birts
and the Rev. Elisha Morris - also were suspended.

Booker and Morris, who say they are still Next Generation
board members, are now asking a Common Pleas judge to
forœ Mondesire to show them the nonprofits financial
records.

As a judge considers that request, Kanes staff is reviewing
what became ofthe 2009 Mondesire probe.

David Peifer, who heads the A.G.s Bureau of Special
lnvestigations, on March 21 interviewed Michael Miletto, the
special agent who investigated Garrett and Mondesire.

The Dally News obtained a transcript of that taped interview.

Miletto told Peifer that he subpoenaed Next Generations
bank account, the transcnpt shows.

When did that, l found that there was a whole bunch of
money that appeared to me to be donations to the NAACP,
not [Mondesire], and they were going into Next Generations
account and they were being used for [Mondesires] lifestyle -
much of it, Miletto told Peifer.

http://www.philly.com/philly/news/20 140606_State_A_G probed_Philly... 1 1/10/2014
State A.G. probed Philly NAACP leader Mondesires finances 5 years ago Page 4 of5

Miletto said he was taken offthe case after Fina and
Costanzo were told about the probe, according to the
transcript.

Miletto said criminal activity was just ignored after that. He
added that two accountants whohad worked for Mondesire
had provided taped statements, with one asking for immunity
and the other asking for protection.

Fina and Costanzo declined to comment about the Mondesire
investigation, citing the secrecy of grand-jury proceedings.

Davis, now in private practice, also declined to comment,
citing the same restriction.

Miletto, who still works for the A.G.s office, also declined to
comment.

Peifer referred questions to Kanes communications staff.

J.J. Abbott, a spokesman for Kane, declined to comment.

The Kane-Fina feud

Fina and Costanzo have a complicated and controversial
relationship with Kane.

Kane criticized Corbetts tenure as attorney general when she
ran for office in 2012, specifically targeting the Penn State
child-abuse scandal that sent former assistant football coach
Jerry Sandusky to prison.

Kanes staff is now conducting an extensive review of that
investigation.

Fina led the Sandusky probe.

Kane, orr Feb. 5, issued a statement noting that her offices
Sandusky review had been underway for one year, adding
that delays in the undertaking will be described in more detail
when the report is made public.

A month later, the Inquirerreported that Kane declined to
pursue an investigation previously led by Fina and Costanzo,
starting in 2010, that used Philadelphia lobbyist Tyron Ali as a
confidential informant to tape conversations with four Philly
state representatives and a former Trafflc Court judge. On the
tapes, the representatives and judge accept cash or gifts from
Ali.

Kane has said Fina dropped 2,033 criminal counts against Ali,
who had been charged with stealing $430,000 from a state
program, 24 days before she was swom into office.

She said that extraordinarily lenient deal crippled the
chance ofthis case succeeding in prosecution.

Fina, in a letter published by the week afterthe first
lnquirera
story ran, called on Kane to explain her decision.

The published a letter that day from Finas boss,
lnquireralso
Wlliams, critical of Kane.

Kane eventually turned over the Ali case file to Wlliams, who
is now examining whether charges can be brought against the

http://www.philly.com/philly/news/20140606_State_A_G probed_Philly... 1 1/10/2014
State A.G. probed Philly NAACP leader Mondesires finances 5 years ago Page 5 of 5

four representatives and the Traffic Court judge, who is
currently on trial in an unrelated federal corruption case.

On Twitter: @ChristtrennanDN

Blog: ph.ly/PhillyClout.com

(JIRIS ItRI(NNAN
Duily Ncws SlajjWritcr brennac@phillynews.com,
2l5-854-593

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http://www.philly.com/philly/news/20140606_State_A_G probed_Phil1y... 1 1/10/2014
CERTIF1CATE OF SERVICE

I hereby certify that I am this day serving one copy of the foregoing Petition for Review

upon the persons and in the manner indicated below:

Via U.S. First-Class Mail,
Postage pre-paid:

The Honorable William R. Carpenter Thomas E. Carluccio, Esquire
Court of Common Pleas of Montgomery County Plymouth Greene Office Campus
Montgomery County Courthouse 1 000 Germantown Pike, Suite D3
P.O.Box3ll Plymouth Meeting,PA 19462-2484
Norristown, PA 1 9404-03 1 1 (484)674-2899
(610)278-5902 (Special Prosecutor)
(Supervising Judge)

Ann Thornburg Weiss, Clerk of Courts
Montgomery County Clerk ofCourts Office
P.O. Box3ll
Norristown, PA 19404-031 1
(610)278-3346
(Clerk of Courts)

By:
k,THLEEN G. AE
Attorney Gener
Commonwealth òfPennsylvania

OFFICE OF ATTORNEY GENERAL
16th Floor-Strawberry Square
Harrisburg, PA 17120
(717) 705-0098
(Fax)(717) 783-5431

Date: November 10, 2014

ln Suprerfle Court

O 2O14
ov
19
Ned in Suprome Cour
•M.D. Misc.Dkt.
NOV 1 0 2014
1 71 2014

UNSEALED PER ORDER OF
THE COURT DATED
AUGUST 26, 2015

IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

PENNSYLVANIA OFFICE OF
ATTORNEY GENERAL, No. MM 2014
Petitioner
V.

SUPERVISING JUDGE OF THE FILED UNDER SEAL
THIRTY-FIFTH STATEWIDE
INVESTIGATING GRAND JURY,
Respondent

MOTION FOR LEAVE TO FILE PETITION FOR REVIEW
WITH ATTACHED BRIEF UNDER SEAL

TO THE HONORABLE CHIEF JUSTICE AND JUSTICES OF THE SUPREME COURT OF
PENNSYLVANIA:

AND NOW, comes the Pennsylvania Office of Attorney General by Kathleen G. Kane,

Attorney General of the Commonwealth of Pennsylvania who files this Motion for Leave to File

its Petition for Review with attached brief in support under seal, and,in support thereof avers as

follows:

1. Concurrent with the filing of this Motion, Petitioner, Office of Attorney General

of the Commonwealth of Pennsylvania("OAG") by Kathleen Kane, Attorney General, is filing a

Petition for Review and supporting brief pursuant to 42 Pa.C.S.A. § 722(5) and Pa.R.A.P.

3331(a)(3).
RecelvejIn Suprerne Court

NO V 11 0 2014
2. Of necessity, the petition recites matters occurring before the Grand Jury and/or

matters subject to Sealing Orders signed by the Supervising Judge of the Thirty-Fifth Statewide

Investigating Grand Jury.

WHEREFORE, the Pennsylvania Office of Attorney General, through the Attorney

General, respectfully requests that this Honorable Court enter an Order granting this Motion for

Leave to File Petition for Review with Attached Brief under Seal and sealing this Motion, the

Petition for Review and supporting brief pursuant to 42 Pa.C.S.A. § 722(5) and Pa.R.A.P.

3331(a)(3), and any future documents filed in this matter pending further Order of Court.

Respectfully submitted,

kATHLEEN G
Attorney Gene
Commonwealth of Pennsylvania

OFFICE OF ATTORNEY GENERAL
16th Floor-Strawberry Square
Harrisburg, PA 17120
(717) 705-0098
(Fax)(717) 783-5431

Date: November 10, 2014

2
VERIFICATION

The facts recited in the foregoing Petition for Review are true and correct to the best of

my knowledge and belief. This statement is made with knowledge that a false statement is

punishable by law under 18 Pa. C.S. § 4904(b).

By:
k4THLEEN G.
Attorney Genera7
more than $70,000 he made to Claudia Tasco.

* CUES paid $1,099 for health insurance for Mondesire.

* Davis wanted to question Mondesire - and possibly
subpoena him for sworn grand-jury testimony - about Garrett,
CUES and Next Generation.

http://www.philly.com/philly/news/20140606_State_A_G probed_Philly... 11/10/2014
State A.G. probed Philly NAACP leader Mondesire's finances 5 years ago Page 3 of 5

Never questioned

Mondesire, a former Inquirer reporter who served as the top
aide to the late U.S. Rep. Bill Gray, said no one from the
A.O.'s Office ever questioned him.

"We didn't use any money for personal gain," Mondesire said.

He said that he has not seen the A.G. Office's documents and
twice declined an offer from the Daily News to review them.

Mondesire said C&C Construction worked on four properties,
including the NAACP headquarters and his newspaper office,
where the Next Generation non-profit is also located.

"We bought supplies with my American Express card for
construction," he said.

"They never asked me a single question back in 2009. We
rehabbed the buildings. We spent money buying stuff for the
buildings, construction and paying off developers."

Garrett declined to comment about the investigations. Her
daughter did not respond to requests for comment.

The May 2010 news release about Garretfs arrest featured
Corbett laying out the charges.

Corbett did not respond this week to two questions: Was he
briefed on the Mondesire investigation and did he play a role
in deciding what happened with that probe?

Mondesire was suspended by the NAACP's national
headquarters in April after he feuded publicly with board
members about the finances of the local chapter and Next
Generation.

Those board members - Sid Booker, Donald "Ducky" Birts
and the Rev. Elisha Morris - also were suspended.

Booker and Morris, who say they are still Next Generation
board members, are now asking a Common Pleas judge to
force Mondesire to show them the nonprofit's financial
records.

As a judge considers that request, Kane's staff is reviewing
what became of the 2009 Mondesire probe.

David Peifer, who heads the A.G.'s Bureau of Special
Investigations, on March 21 interviewed Michael Miletto, the
special agent who investigated Garrett and Mondesire.

The Daily News obtained a transcript of that taped interview.

Miletto told Peifer that he subpoenaed Next Generation's
bank account, the transcript shows.

"When I did that, I found that there was a whole bunch of
money that appeared to me to be donations to the NAACP,
not [Mondesire], and they were going into Next Generation's
account and they were being used for [Mondesire's] lifestyle -
much of it," Miletto told Peifer.

Miletto said he was taken off the case after Fina and
Costanzo were told about the probe, according to the
transcript.

http://www.philly.com/philly/news/20140606_State_A_G probed_Philly... 11/10/2014
State A.G. probed PhiIly NAACP leader Mondesire's finances 5 years ago Page 4 of 5

Miletto said "criminal activity was just ignored" after that. He
added that two accountants who had worked for Mondesire
had provided taped statements, with one asking for immunity
and the other asking for protection.

Fina and Costanzo declined to comment about the Mondesire
investigation, citing the secrecy of grand-jury proceedings.

Davis, now in private practice, also declined to comment,
citing the same restriction.

Miletto, who still works for the A.G.'s office, also declined to
comment.

Peifer referred questions to Kane's communications staff.

J.J. Abbott, a spokesman for Kane, declined to comment.

The Kane-Fina feud

• Fina and Costanzo have a complicated and controversial
relationship with Kane.

Kane criticized Corbett's tenure as attorney general when she
ran for office in 2012, specifically targeting the Penn State
child-abuse scandal that sent former assistant football coach
Jerry Sandusky to prison.

Kane's staff is now conducting an extensive review of that
investigation.

Fina led the Sandusky probe.

Kane, on Feb. 5, issued a statement noting that her office's
Sandusky review had been underway for one year, adding
that delays in the undertaking "will be described in more detail
when the report is made public."

A month later, the Inquirer reported that Kane declined to
pursue an investigation previously led by Fina and Costanzo,
starting in 2010, that used Philadelphia lobbyist Tyron Ali as a
confidential informant to tape conversations with four Philly
state representatives and a former Traffic Court judge. On the
tapes, the representatives and judge accept cash or gifts from
Ali.

Kane has said Fina dropped 2,033 criminal counts against Ali,
who had been charged with stealing $430,000 from a state
program, 24 days before she was sworn into office.

She said that "extraordinarily lenienr deal "crippled the
chance of this case succeeding in prosecution."

Fina, in a letter published by'the Inquirer a week after the first
story ran, called on Kane to explain her decision.

The Inquirer also published a letter that day from Fina's boss,
Williams, critical of Kane.

Kane eventually turned over the Ali case file to Williams, who
is now examining whether charges can be brought against the
four representatives and the Traffic Court judge, who is
currently on trial in an unrelated federal corruption case.

http://www.philly.com/phiIly/news/20140606_State A_G probed_Philly... 11/10/2014
State A.G. probed Philly NAACP leader Mondesire's finances 5 years ago Page 5 of 5

On Twitter: @ChrisBrennanDN

Blog: ph.ly/PhillyCloutcom

CH RLS BRENNAN
Daily News Staff Writer brenna*phillynews.com,
215-854-5973V
EXHIBIT "B"
Special prosecutor probes Pa. Attomey General's Office Page 1 of5

Monday, November 10, 2014 Member Login: Sign in l Register if t gl

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Pa. Attorney General Kathleen G. Kane faces questions over how her office handled secret records. A special prosecutor
has issued subpoenas to her office, others. MICHAEL BRYANT / Slat! Photogiaphe,, tile

Craig R. McCoy and Angela Couloumbis, Inquirer Staff writers
Latest News Video
LAST UPDATED: Sunday, August 31, 2014, 1:08 AM

A special prosecutor is investigating
Efte Jinqyircr whether the office of Pennsylvania
Attorney General Kathleen G. Kane leaked confidential grand
jury material to a newspaper in a bid to strike back at former
prosecutors in the office who had been critical of her,
according to several people familiar with the matter.

The special prosecutor has issued several subpoenas to
Kane's office and others to explore how secret records
became public this year about a 2009 investigation by the
Attorney General's Office involving Philadelphia political
activist J. Whyatt Mondesire, the sources said. More videos:

Though there have been periodic inquiries into grand jury
leaks in the past, this appears to be first time the state
attorney general or top staffers in the office have come under
scrutiny.
Most Viewed News Stories:

http://www.philly.com/philly/news/politics/20140831_Headline_here_in_... 11/10/2014
Special prosecutor probes Pa. Attorney General's Office Page 2 of 5

Reached for comment late Saturday afternoon about reports
Bouncers shoot man
of the leak probe, J.J. Abbott, a Kane spokesman, referred at Phila. strip club
those questions to Renee Martin,,Kane's acting

MORE communications director. Martin did not return phone calls.

THAN It is unclear who commissioned the investigation, nor was The Kane's car crash
Inquirer able to determine the special prosector's name. But derailed testimony
50,000 typically, sources said, such a decision would need approval
again
DIFFERENT from the Pennsylvania Supreme Court.
MOVIES
AND SHOWS. A person who violates grand jury secrecy rules may be found US bishops struggling
to adapt to pope
guilty of contempt of court and sentenced to up to six months
in prison.

The leak inquiry was prompted by a Philadelphia Daily News
article in June that drew heavily upon a 2009 internal memo Merchants say
cigarette tax is a
prepared as part of a grand jury investigation that business-killer
summarized the status of the Mondesire probe.

The newspaper story questioned whether top prosecutors Hi
the office at the time, including then-Chief Deputy Attorney Pa. official's
complicated life as a
General Frank G. Fina, had pursued the Mondesire probe lesbian
aggressively.

Over the last year, Kane, a Democrat, has been locked in an
increasingly bruising battle with Fina and other former
prosecutors and investigators who worked under her
Republican predecessors over how certain high-profile cases
Travel Deals were handled.

Critics have faulted Kane for her decision to shut down a sting
launched by Fina that sources and investigative documents
say captured five Philadelphia Democratic officials taking
cash payments or gifts.

$249 & up -- Ends 11/16: The Daily News article based on the leak seemed to suggest
Also on Philly.com
Caribbean Cruise Sale Fina and other former state prosecutors had fallen short in
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nearly 2 months
Fina did not return telephone calls seeking comment for this before recall
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-Some taxes. tees acktillocat article. In a previous interview, he adamantly denied any
suggestion that he did not aggressively pursue the Mondesire
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No charges were filed in that case. Mondesire, a longtime
leader of the NAACP in Philadelphia, has denied any
wrongdoing.
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matter: the exchange of sexually explicit e-mails among
ENTERTAINMENT:
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MAKE broadcast from
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HAPPEN The messages, shared on state computers and sometimes UPenn
Fas LESS
through government e-mail accounts, are said to have
contained pornographic images, jokes, cartoons, and other
STAPLES:
private messages, according to people familiar with them.
Make More Happen For
Less

http://www.philly.com/philly/news/politics/20140831_Headline here_in_... 11/10/2014
Special prosecutor probes Pa. Attorney General's Office Page 3 of5

THIS WEEK ONLY
Not all the recipients are known. By some accounts, some of make over a South St.
See More Circulars » the material was circulated among scores of officials, from bar
homicide investigators in the Attorney General's Office to
state prosecutors and other state officials, including top
JOBS:
Pennsylvania jurists.
How should I manage
my workload while
The Inquirer and other news organizations have filed Right-to- I'm on vacation?
Know requests with the Attorney General's Office seeking
information about those e-mails, but a judge has blocked the
office from deciding whether they can be released. Stay Connected

Get the latest Philly.com Daily Headlines newsletter
The e-mails have become an issue in connection with the delivered to your email. Sign up now!

leak inquiry, with some Kane critics arguing that Kane's office
is using the threat of their release as a way to silence
I Enter email address to sign up

Already a philly.com member? 0 Yes 0 No
criticism, sources told The Inquirer.

In an article published Saturday, the Pittsburgh Tribune-
Review reported that the Attorney General's Office, in AN INQUIRER ORIGINAL' . Ilnqgirer
response to that newspaper's Right-to-Know request, had
said a judicial stay barred the office from saying whether it DISCOVER THE
could release the e-mails.
IMPROVED
Martin, Kane's chief spokeswoman, told the Pittsburgh INQUIRER
newspaper she could not reveal the name of the judge or the
LEARN MORE
court that issued the stay.

That a judge has issued a temporary stay suggests that legal
fight is ongoing.

The leak investigation by the special prosecutor was launched
after a June 6 article in the Daily News that Kane was
reviewing a 2009 grand jury investigation into the finances of
Mondesire, former head of the NAACP Philadelphia chapter,
and of one of his employees.

The article cited a 2009 memo written by then-Deputy
Attorney General William Davis Jr. to Fina and then-Senior
Deputy Attorney General E. Marc Costanzo. Among other
things, the memo said investigators had "uncovered what
appeared to be questionable spending of state money by
Mondesire." The article also listed examples of the alleged
questionable spending Davis had included in the memo.

The Daily News article said Kane wanted to find out what
happened with the investigation. Mondesire said state
prosecutors never interviewed him.

In an interview with The Inquirer this summer, Davis said it
was false to suggest Fina had impeded the probe.

The Daily News article reported that a top Kane aide had in
March interviewed an investigator with the Attorney General's
Office who had worked on the Mondesire case. The Daily
News obtained a tape of that interview. In it, the paper
reported, the investigator said he had been taken off the case
after he told Fina and Costanzo about his work.

Davis, in the interview with The Inquirer, said that the agent in
question had been replaced and that the probe had
continued. "It wasn't dropped," Davis said.

http://www.philly.com/philly/news/politics/20140831_Headline_here_in_... 11/10/2014
Special prosecutor probes Pa. Attomey General's Office Page 4 of 5

For Fina and other former prosecutors and investigators in the
Attorney General's Office, and for Kane and her top
command, the quarrel over the alleged grand jury leaks, the
handling of the Mondesire case, and the sexually explicit
e-mails is the latest skirmish in a war that dates to Kane's
2012 bid for office.

In that race, Kane sharply criticized Fina's leadership of the
investigation into serial child sex abuser Jerry Sandusky. She
suggested political consideration delayed the probe into the
former assistant football coach at Pennsylvania State
University.

She also hired a former federal prosecutor to reinvestigate the
Sandusky case. In a recent report, that ex-prosecutor said he
found no evidence the probe had been delayed for political
reasons but said the investigation might have moved more
quickly.

In.her first months in office, Kane also secretly shut down a
probe Fina began that sources and investigative documents
say caught five elected officials, all Philadelphia Democrats,
on tape taking cash, money orders, or, in one case, a $2,000
bracelet.

After The Inquirer this year revealed Kane's decision to end
the sting, she said the investigation had been carried out
poorly and was possibly tainted by racial targeting. All five
caught on tape are African American.

Fina vigorously defended the investigation. His current boss,
Philadelphia District Attorney Seth Williams, has taken on the
case.

In recent years, judges have approved a series of probes to
get to the bottom of leaks, such as information that became
public in news stories about the separate investigations into
former casino operator Louis DeNaples and $andusky.

Judge Barry Feudale jailed a former investigator with the
Attorney General's Office for leaks related to an investigation
into prison conditions in Lackawanna County.

Feudale jailed him for the maximum time permitted at the time
for that form of contempt of court, 15 days. After Feudale
complained vigorously that such a penalty was too mild, the
possible maximum was increased to its current six months.

acouloumbis@phillynews.com

717-787-5934V

@Angelaslnk

Craig R. McCoy and Angela Coulounthis
Inquirer Stuff Milers

http://www.philly.com/philly/news/politics/20140831_Headline_here_in_... 11/10/2014
EXHIBIT "C"
Kane's car crash derailed testimony a second time Page 1 of4

Monday, November 10. 2014 ]
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The 1999 Jeep that Attorney General Kathleen Kane's SUV hit early On the morning of Oct 21 irr, Dunmore, Lackawanna
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Craig R. McCoy and Angela Couloumbis, Inquirer Staff writers
Lutes( News Video

NICU LAST UPDATED.Sunday, November 9, 2014, 1 10 AM

The early-morning car accident that left
.111 tttttt 1111,1VCP•Ir.
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Pennsylvania Attorney General Kathleen
G. Kane with a concussion last month occurred hours before
she was scheduled to testify in a grand jury investigation into
possible improper leaks by her office, according to people
with knowledge of the case.

It was the second time this fall Kane canceled plans to take
the stand, the sources said.

Kane was scheduled to appear that morning in a Montgomery
County courtroom, where a special prosecutor is examining
More videos:
how confidential records about a 2009 investigation run by
her Republican predecessors became public.

Her testimony has been rescheduled for later this month, the
sources said. The grand jury expires within a few weeks, they
said. Most Viewed News Stories:

Teen pulls Philly cop
from burning car
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Wolf likely will face difficult dealings with GOP

Renee Martin, Kane's spokeswoman, declined to discuss any
matter related to the grand jury. She has said her office Bouncers shoot man
at Phila. strip club
cannot even confirm or deny the existence of one.
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http://www.philly.com/philly/news/local/20141109_Kane_s_car_crash_der... 11/10/2014
Kane's car crash derailed testimony a second time Page 2 of4

She did say that Kane, 48, was recuperating and working
Another teacher
from her home in Clarks Summit, about 10 miles north of assaulted at Bartram
Scranton, and that her doctors had forbidden her to travel.
Martin said that she did not know when Kane was expected to
return to work in Harrisburg but that the attorney general was
$249 8. up — Ends 11/16:
connected with the office by computer and phone. She added: Kanes car crash •
derailed testimony
Caribbean Cruise Sale "Ifs not affecting how work is done here." , again
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the special prosecutor for the grand jury sitting in Montgomery
usno or TRAVfe.00
'Some ta.es. toes addasonaI County. His appointment was authorized by Chief Justice US bishops struggling
to adapt to pope
Ronald D. Castille. In his position, Carluccio is examining an
alleged leak to the Philadelphia Daily News about a 2009
Weekly Circulars grand jury inquiry into the finances of activist J. Whyatt
Mondesire, former head of the Philadelphia NAACP.

MEE Violating grand jury secrecy rules can be punished by up to
six months in prison.
BUYTWozga=
The Daily News story questioned whether Frank G. Fina and
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Fina has been locked in an increasingly bitter and public
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Just before 7 that morning, the SUV carrying Kane and her
security detail hit an empty parked car in Dunmore, a small
town near Scranton, according to a police report. The vehicle
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Inquirer photographer took photos of it last week. be great

The two agents with Kane at the time were Patrick Reese and
Robert Ruddy. Both had been Dunmore police officers before
ENTERTAINMENT:
Kane hired them last year. Reese had been the police chief, Stephen A. Smith to
Ruddy a veteran officer. broadcast from
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According to the police report, Ruddy was driving and Reese
was in the front passenger seat.
CRAIG LABAN
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The accident report by Dunmore police, released by Martin on Sophisticated, if a bit
Oct. 31, said the crash occurred when the driver of the SUV faux, French fare
TX
lost sight of the dark, rain-slicked road as his iPad slipped off
the seat. JOBS:
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There was disagreement about whether Kane was wearing a my workload while
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The report said Kane and the men were wearing shoulder and
Stay Connected
seat belts. But Martin said Kane was not belted in and struck
Get the latest philly.com Daily Headlines newsletter
her head on impact. The cost of the damage to her car was delivered to your email. Sign up now!
estimated at $964, state records show.
Enter email address to sign up

None of the three was taken to a hospital by emergency Already a philly.com member? 0 Yes 0 No
medical personnel, according to the police report. Kane did go
to the emergency room, and subsequently visited her doctor,
Martin said.

Kane's office did not release information about the accident
until The Inquirer asked about it 10 days after the crash.

http://www.philly.com/philly/news/loca1/20141109_Kane_s_car_crash_der... 11/10/2014
Kane's car crash derailed testimony a second time Page 3 of4

Martin said the office didn't report the crash because it
considered it a minor matter that did not affect the office's
AN INQUIRER ORIGINAL Utelltuittitrr
performance.

She said she also expected Dunmore police to issue the
news. That didn't happen. Dunmore Police Chief Sal
Marchese didn't retum calls from The Inquirer. He told the
Scranton Times-Tribune there was "no particular reason" for
not issuing the news.

Martin said last week all the participants were recovering."We
thank everyone for their concerns," she said in a statement.

acouloumbis@phillynews.com
;
717-787-5934V @Angelaslnk
EXHIBIT "D"
Sources: Porn scandal misses Kane's main target Page 1 of6

Monday, November 10, 2014 j
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'''' '''''' - ....... ... . ....•
1
Date: Mon,Jul 7,2014 at 12:36 PM S/v
Subject: FW:Please confirm receipt
To: D Abbott

Clarified first request today to include fonner as well as current staff

This is an RTK request under PAlaw for the follOwing:
EmailA and/or Email attachments reviewed by SpeCial Deputy Geoffrey Moulton that contain
pornographic images — sentby former and current AG stiff to otheteurrent and forrneE AG
staffers — and former and current staffers who were ca.
Thanks.
Brad Burnsted
State Capitol Reporter
Pittsburgh. Tribune-Review
717-514-1032 (cell)
717-787-1405 (land)
www.triblive,com •
bbumsted@tribweb:com

The information transmitted is intended only for the person or entity to whom it is addressed and may contain
confidential and/or privileged material. Any use ofthis information other than by the intended recipient is
prohibited. If you receive this message in error, please send a reply e-mail to the sender and delete the material
from any and all cOmputers. 'Unintended transmissionS shall not constitute waiver of any applicable attorney-
client or any other applicable privilege.PA-OAG
Aug. 11;2014

JJ Abbott
Deputy Press Secretary
Pennsylvania Attorney GeneraPs Office
Strawberry Square
Harrisburg,PA 17120

VIA EMAIL:

Dear Mr, Abbott,

This is a public records request in accordance with the Pennsylvania Right-to-Know law
to review and/or have copies rnade of all e-mails sent and/or forwarded by former Chief
Deputy Attorney General Frank Fina and/or his former colleagues that include any
pornographic and or sexually explicit references,IJRL links, photographs and/or videos.

It is my understanding that &nails conthining such material may have been recovered
during the research that resulted in the May 30,2014 Report to the Attorney General on
the Investigation of Gerald A.Sandusky.

Please contact me at 215-854-5973 if you have any questions or by e-mail at
brennae@phillynews.com. I can also be reached by mail at 801 Market Street, Suite 300,
Philadelphia,PA, 19107.

Thank you.

Sincerely,

Chris Erennan
Political Editor
Philadelphia.Daily News
W.M.a,,,-(2MOrn
IS Abbott
Deputy Press Secretary
Pennsylvania Attorney General's Office
Strawberry Square
• Harrisburg,PA 17120

VIA EMAIL:

Dear Mr. Abbott,

This is an amended public records request,following my Aug. 11, 2014 request, in
accordance with the Pennsylvania Right-to-Know law to review andlor have copies made
of all e-mails sent and/or forvvarded by former Chief Deputy Attorney General Frank
Fina and/or his former colleagues that include arty pornographic and or sexually explicit
references, URL links, photographs and/or videos.

AMENDMENT, . This request includes any e-mail correspondence ofthe above described
nature between.Frank Fine and former Attomey General Office employees Glenn Parno
and/or Richard Sheetz. That correspondence may have used the subject line title of
'Motivational Office',

It is my understanding that emails containing such material may have been recovered
during the research that resulted in the May 30,2014 Report to the Attorney General on
the Investigation of Gerald A. Sandusky.

Please contact me at 215-854-5973 if you have any questions or by e-rnail at
brennac®phillynews.com. I can also be reached by mail at 801 Market Street, Suite 300,
Philadelphia,PA, 19107.

Thank you.

Sincerely,

Chris Brennan
Political Editor
Philadelphia Daily News
c,c Attorney Generai

Ail. 2..9 7.014
• tc 1.:fiew °nicer
pennsytvania SR
OFFICE-OF OPEN RECORDS

STANDARD RIGHT-TO-KNOW REQUEST FORM

DATE REQUESTED: July 29, 2014

REQUEST SUBMITTED BY: E-MAIL

NAME OF• REQUESTOR:Steve Esack, reporter The Morning Call

STREET ADDRESS: Main Capitol Building, Room 524E Floor, Newsroom, Harrisburg, PA
17120

CITY/STATE/COUNTY (Reqpired): Har:risburgIPA/Dauphin •

TELEPHONE(Optional): 717-783-7305

RECORDS REQUESTED:
*Provide as much specific detail as possible so the agency can identify the information.

Electronic copies of personal, non-official, non-business emails depicting pornographic images,
video clips and sexually explicit motivational tools/messages sent on taxpayer-funded •
computers and servers between 2008 and 2012 among and between employees of the
Pennsylvania Attorney Generars Office, including but not limited to the following:
Frank Fina
Frank Noonan
Glenn Parno
E. Christopher Abruzzo
Christopher Carusone
Joe McGettigan
Randy Feathers
Torn Corbett

DO YOU WANT COPIES? YES

DO YOU WANT TO INSFECT THE RECORDS? YES

DO YOU WANT CERTIFIED COPIES OF RECORDS? YES or NO

RIGHT TO KNOW OFFICER:
DATE RECEIVED BY ME AGENCY:-

AGENCY FIVE(5)-DAY RESPONSE DUE:

**Public bodies may fill anonymous verbal or written requests. If the requestor wishes to pursue
the relief and remedies provided for in this Act, the request must be in writing. (Section 702.)
Written requests need not include an explanation why information is sought or the intended use
of the information unless otherwise required by law. (Section 703.)
Mummert, Mary L.

From: •Mummert, Mary L
Sent: Monday, August 11,2014 10:00 AM
To: • Right To Know Response
Subject: RTK REQUEST - Amy Worden (Reporter)

From: Born, Susan J.
Sent: Monday,August 11, 2014 9:17 AM
To: Mummert, Mary L. Moo r Attorney Generai
Subject; FW:InquIrer/RTK
AUG 05 70.14. •
Mary,
Flight to Kam Officer -
Below is a RI:XL request that was receivedlastweelc. Did you see this one yet?
5q lp -tki0F,.aT
StA41;14/1/

From: Mulle, Robert A.
Sent: Tuesday, August 05,2014 4:24 PM
To: Born, Susan J. •

Subject; FW: Inquirer/RTK

One of''those R2K's; we can handle upon your return from your well-earned vacation.
Bob

From; Abbott, J.J.
Sent: Tuesday, August 05, 2014 4:10 PM
To: Muile, Robert A.
Cc: Martin, Renee G.
Subject: FW: Inquirer/RTK.

Bob- This was sent to me because supposedly Amy had issues with the online form.

From: Worden, Amy frnallto:aworden(aphillynews.coml
Sent Tuesday, August 05, 2014 3:56 PM
To: Abbott, J.J. .
Subject: Inquirer/RTK

Aug. 5,2014

Dear Pa. attorney generaPs office:

Under the state Right-to-Know law,The Inquirer requests copies of all email traffic that is of a personal nature
and involves pornogtaphic or otherwise professionally inappropriate material to and from the work accounts of

1
-

former deputy attorney Frank Fina and fellow former prosecutors Mare Costanzo and Patrick Blessington froin
2009, until their departure from the office's staffin late 2012 or early 2013.

Please include all recipients ofthe emailchains that shared in this email and include the actual mails.

Thanks very much and please contact us if we can clarify this in any way.

Sincerely,

Arny Worden
Staff Writer
State Capitol Bureau
Roorn 524E
Harrisburg, PA 17120
717-783-2584
Twitter @in kya my

theXr_tiquirtr
ta1tfaph1y!Tc--
r;rr
TE
6-n.1-41A

The information transmitted is intended only for the person or entity to whom it is addressed and may contain
confidential and/or privileged material, Any use ofthis inforrnation other than by the intended recipient is
prohibited. If you receive this message in error, please send a reply e-mail to the sender and delete the material
frorn any and all computers. Unintended transmissions shall not constitute waiver of any applicable attorney-
client or any other applicable privilege.PA-OAG

2
.... ... . - r

Exhibit B
pennsylvania
OFFICE OF OPEN RECORDS

STANDARD RIGHT-TO-KNOW REQUEST FORM

DATE REQUESTED: July 29, 2014

REQUEST SUBMITTED BY: E-MAIL

NAME OF REQUESTOR: Steve Esack, reporter The Morning Call

STREET ADDRESS: Main Capitol Building, Room 524E Floor, Newsroom, Harrisburg, PA
17120

CITY/STATE/COUNTY (Required): Harrisburg/PA/Dauphin

TELEPHONE (Optional): 717-783-7305

RECORDS REQUESTED:
*Provide as much specific detail as possible so the agency can identify the information.

Electronic copies of personal, non-official, non-business emails depicting pornographic images,
video clips and sexually explicit motivational tools/messages sent on taxpayer-funded
computers and servers between 2008 and 2012 among and between employees of the
Pennsylvania Attorney General's Office, including but not limited to the following:
Frank Fina
Frank Noonan
Glenn Parno
E. Christopher Abruzzo
Christopher Carusone
Joe McGettigan
Randy Feathers
Tom Corbett

DO YOU WANT COPIES? YES

DO YOU WANT TO INSPECT THE RECORDS? YES

DO YOU WANT CERTIFIED COPIES OF RECORDS? YES or NO

RIGHT TO KNOW OFFICER:
DATE RECEIVED BY THE AGENCY:

AGENCY FIVE (5)-DAY RESPONSE DUE:

**Public bodies may fill anonymous verbal or written requests. If the requestor wishes to pursue
the relief and remedies provided for in this Act, the request must be in writing. (Section 702.)
Written requests need not include an explanation why information is sought or the intended use
of the information unless otheiwise required by law. (Section 703.)
Ex ibit C
Email Communications Recovered during Moulton Review
Final
Requestor Records Reciuested Recv d Date Due Date Due
Brad Bmnsted Any emails or other documents sent among current 7/7/14 7/14/14 8/13/14;
Pittsburgh Tribune- and fanner AG staff reviewed by Special Deputy • verbally
Review Geoffrey Moulton extended
to 8/21/14
Steve Esack Emails depicting pornographic images, video clips 7/29/14 8/5/14 9/4/14;
The Morning Call and sexually explicit motivational tools/messages agreed to 1
between 2008 and 2012 among and between week
employees, including but not limited to the extension
following: Frank Fina; Frank Noonan; Glenn after stay
Panao; E. Christopher Abruzzo; Christopher is lifted
Carusone; Joe McGettigan; Randy Feathers and
• Tom Corbett
Amy Worden All email traffic that involves pornographic or • 8/5/14 8/12/14 9/11/14;
The Inquirer otherwise professionally inappropriate material to notified of
and from former deputy attorney Frank Fina, Marc stay/hold
Costanzo and Patrick Blessington from 2009, until by letter
their departure from the office's staff in late 2012 or
early 2013.
AMENDMENT: Including but not limited to: Amended
Chris Abruzzo, Chris Carusone,Kevin Harley, ._._ _._ . .on
request
Frank Noonan, James Barker, Bruce Beemer,Louis 8/22/14
De Titto and Ellen Granahan from 2005 to present. (McCoy)
Final
Requestor Records Requested Recy'd Date Due Date Due
Chris Brennan All e-mails sent and/or forwarded by former Chief 8/12/14 8/19/14 9/19/14;
Philadelphia Daily Deputy Attorney General Frank Fina and/or his notified of
News former colleagues that include any pornographic Narrowed 8/20/14 stay/hold
and or sexually explicit references, URL links, request on by letter
photographs and/or videos. 8/13/14
AMENDMENT:This request includes any e-mail
correspondence ofthe above described nature
between Frank Fina and former Attorney General
Office employees Glenn Parno and/or Richard
Sheetz.
Charles Thompson Any Office of Attorney General emails, sent or 9/2/14 9/9/14 10/9/14
Patriot News received, that would have been recovered through
Special Deputy II. Geoffrey Moulton's review ofthe
Jerry Sandusky investigation that were found to
contain overtly sexual images or content
Mark Scolforo Copies of internal agency emails under 9/4/14 9/11/14 10/10/14
The Associated Press consideration for release by Judge Krumenacker
9/26/14 No ,
Karen Langley All emails between and among people who at the 9/19/14
Pittsburgh Post- time were employed by the Office of Attorney • extension
Gazette General that are unrelated to official duties and
which contain or include attachments that contain or
links to images, videos and/or language of a
pornographic or sexually explicit nature
ALL FINAL RESPONSES HAVE BEEN STAYED PER JUDGE KRUMENACKER(8/20/14)
.e
RTKL Requests Related to Non-OAG Personal Email Communications
Final
Re ue t Records Reciuested Recv d Date Due Date Due Response
Brad Bnmsted Any sexually explicit emails — with 9/24/14 10/1/14 10/31/14 10/30-Denied;
Pittsburgh Tribune- attachments depicting nude women or not a record
Review partially clad women and adults engaged in
(60611) sexual acts — sent or received by Brian
Westmoreland while he was an employee
ofthe attorney general's office
Mary Wilson Records regarding and including e-mails of 9/26/14 10/3/14 10/31/14 10/30-Denied;
PA Public Radio pornographic content exchanged among certain records
(60660) current and former employees ofthe Office do not exist;
of Attorney General, including but not others are not
restricted to Christopher Abruzzo, records &
Christopher Carusone, Randy Feathers, civil
Glenn Parno,Frank Noonan, Kevin Harley, investigation
Patrick Blessington, Richard A. Sheetz, Jr.,
Frank Fina, Claude Thomas,Bruce
Beemer, Joseph McGettigan, William
Ward, Ann-Marie Kaiser, and Jennifer
Branstetter
Brad Bnmsted sexually-explicit movies, videos, stills or • 9/26/14 10/3/14 Denied — not a
Pittsburgh Tribune- images, attached to emails and sent or •
record & civil
Review received by current employees who are not investigation
(60687) members of collective bargaining units;
request for the attachment and the email
string showing who sent the email and who
received it and the date
Final
Requestor Records Requested Recv'd Date Due Date Due Response
Brad Bumsted Names ofjudges and/or justices named in 9/29/14 10/6/14 Denied — not a
Pittsburgh Tribune- emails from 2008-2012 transmitted with record & civil
Review • sexually explicit images, videos, or investigation
(60716) movies, showing partially clad and topless
females, nude women, and men and
women engaged in sexual acts that were
among recovered and reviewed by H.
Geoffrey Moulton
Simon Campbell Annual salaries, birth years and hire dates 9/29/14 10/6/14 11/5/14 • Granted in
Pennsylvaniansfor of all current employees having sent or part; certain
Union Reform received explicit emails between 2008- records
(PFUR) 2012; annual salaries, birth years and hire provided upon
dates of all current employees who have receipt of
been identified, having an annual salary of payment
>$100,000 per year; final salaries, birth
years, hire dates, departure dates of all
former employees who are not the 8
identified former employees whose names
were not released to the media due to
"restrictions upon which we cannot
elaborate ; final salaries, birth years, hire
dates, departure dates ofthe 8 identified
former employees; and copies ofthose
pages in "state worker contracts" showing
the "provisions" that allegedly preclude the
OAG "from releasing the names of current
2
Final
Requestor Records Requested Recv'd Date Due Date Due Response
employees identified as sending or
receiving the e-mails" NOTING that
PFUR does not seek any current or former
employee names nor does PFUR seek any
e-mail correspondence
Pete Muntean All emails with sexually explicit 9/30/14 10/7/14 Dethed —
WGAL News 8 attachments sent on state accounts from insufficiently
(60735) 2008 through 2014; include the full text of specific, not a
e-mails including file names, senders, record & civil
recipients and timestamp. investigation
Angela Couloumbis All email messages,from 2008 to 2012, 10/1/14 10/8/14 Denied — not a
The Inquirer that contain sexually explicit images, record & civil
(60780) • videos or other content that were shared investigation
between former and current members of
the Attorney General's office and members
ofthe state judiciary, including but not
limited to Justice Seamus McCaffery
Brad Bumsted Emails allegedly sent by Justice Seamus 10/2/14 10/9/14 Denied — not a
Pittsburgh Tribune- McCaffery to the state(AG)email system record & civil
Review • now that they are in the public eye as a investigation
(60811) result of a Morning Call story Oct. 2, 2014
and that may contain sexually-explicit
image attachments
3
Final
Requestor Records Requested Recv'd Date Due Date Due Response
Angela Couloumbis copies of emails or other messages sent or 10/3/14 10/10/14 11/7/14 Denied —
The Inquirer received between 2008 and 2012 by records do not
(60834) William Ryan exist
Brad Bumsted any sexually explicit images•and emails 10/3/14 10/10/14 11/7/14 • Denied —
Pittsburgh Tribune- sent or received by Bill Ryan,former first records do not
Review • assistant and acting AG exist
(60833)
Brian Howard Copies of emails sent from or to 10/6/14 10/14/14 Denied — not a
Philadelphia McCaffery between 2008 and 2012; all record & civil
Magazine emails sent or received by but not limited investigation
(60847) to the following: McCaffery, Abruzzo,
Pamo, Fina and Noonan between 2008 and
2012
Brad Bnmsted emails that show the faces or heads of Jerry 10/8/14 10/16/14 WITHDRAWN
Pittsburgh Tribune- Sandusky and/or his wide Dottie, or their BY
likenesses, super imposed on partislly-cla,
d
Review REQUESTOR
topless or nude men and women or men and
(60947) women engaged in sex acts.
Brad Bumsted image attached to •email, circulated among 10/8/14 • 10/16/14 11/14/14 Denied — not a
Pittsburgh Tribune- criminal prosecutors and agents and record
Review discovered in emails reviewed by Geoffrey
(60949) Moulton that show two children, the girl
with her top off, and the boy holding or
attempting to hold her pants open
4
Final
Requestor Records Requested Recy'd Date Due Date Due Response
Brad Bumsted All fees paid to outside law firms in 2013 10/8/14 10/16/14 Contract with
Pittsburgh Tribune- and 2014 in connection with Right to Attorney
Review Know law requests for work as appeal • Wallet
(60950) officers or to respond to requests on behalf provided; no
ofthe Office of Attorney General. Please other records
provide the dollar amount and the name of exist
the lawyer or firm
Victor Fiorillo copies of any responses sent by former 10/8/14 10/16/14 11/14/14 Denied — HR
Philadelphia employees ofthe Attorney GeneraPs letters that
Magazine Criminal Law Division to letters sent by , have been sent
(60946) the Human Resources depaitalent after in the past to
those employees left or announced they former
were leaving. It is my understanding that employees do
when any employee ofthe Attorney not ask about
GeneraPs office resigns, retires or is corruption or
terminated, a letter is sent to them by the other
HR depaitment asking various questions, problems (per
including whether those former employees Nicole Kreiser
are aware of any corruption or other those letters
problems. It is the responses to those letters focus on pay,
that I am seeking. I am requesting copies of benefits, etc)
any responses received between January 1, Records do
2011 and December 31, 2011 not exist
Gina Passarella any emails sent to or from any 10/9/14 10/17/14 Denied —
The Legal Pennsylvania judge or justice on their insufficiently
Intelligencer government email account or their private specific and
(60976) email accounts to or from any other state • not a
5
Final
Requestor Records Requested Recy'd Date Due Date Due Response
employee that included material of a lewd, record/part of
pornographic or sexual nature, including ongoing civil
words, descriptions, images, audio or video investigation
files or depictions in any other form.
Brad Bumsted any jokes or sexually explicit images 10/10/14 10/20/14 11/19/14 Denied —
Pittsburgh Tribune- depicting Jerry Sandusky and his wife, records do not
Review Dottie Sandusky among the recovered exist
(61004) emails that had been deleted under -
previous administrations. This would
include the term being "Sanduskiee in
text of emails
Brad Bumsted The names and salaries of AG employees, • 10/22/14 10/29/14 12/1/14 RR is unaware
Pittsburgh Tribune- assigned or working for the special of any such
Review prosecutor in Norristown, Mr. Carluccio, arrangement —
(61241) including secretarial staff, lawyers and/or Comptroller
agents, whether they work is part offull- referred to
time CDAG Barker
— OAG
personnel
NOT
assisting;
• DENIED
records do not
exist
6
Final
Requestor Records Requested Reeled Date Due Date Due Response
Brad Bumsted emails of a sexually explicit nature that 10/22/14 10/29/14 12/1/14 Denied —
Pittsburgh Tribune- may have been sent from Frank Fina to records do not
Review former grand jury judge, Barry Feudale exist
(61243) from 2008-2012 and from Feudale to Fina,
during that same period, which were
recovered by Moulton's Sandusky
investigation
Karen Langley 1. All email records that reference any 10/24/14 10/31/14 Denied —
Post-Gazette business ofthe Pennsylvania Supreme insufficiently
(61318) Court, including but not limited to petitions specific; lacks
for allocatur, cases pending before the context
Court, cases decided by the Court, court
procedures, and discussions of or
references to litigants and/or their counsel,
sent by the following current and former
justices of the Pennsylvania Supreme
Court, Ronald Castille, Thomas Saylor, J.
Michael Eakin, Max Baer, Debra • -
McCloskey Todd, Seamus McCaffery,
Correale Stevens, and Joan Orie
Melvin, from January 1, 2008, through
October 24,2014,to employees ofthe
Office of Attorney General.
2. All email records that reference any
business ofthe Pennsylvania Supreme
Court, including but not limited to petitions
for allocatur, cases pending before the
Court, cases decided by the Court, court
7
Final
Requestor Records Requested Recy'd Date Due Date Due Response
procedures, and discussions of or
references to litigants and/or their counsel,
sent by employees ofthe Office of
Attorney General from January 1, 2008,
through October 24,2014, to the following
current and former justices ofthe
Pennsylvania Supreme Court: Ronald
Castille, Thomas Saylor, J. Michael Eakin,
Max Baer, Debra McCloskey Todd,
Seamus McCaffery, Correale Stevens, and
Joan Orie Melvin.
Brad Bumsted 4 separate requests that will be responded 10/30/14 11/6/14 12/8/14 TO BE
Pittsburgh Tribune- to as 1 — 1. Evidence of misuse of state DENIED AS
Review email systems and state computers through . FOLLOWS -
(61450) sexually explicit emails sent between Fina 1. Denied —
and Feudale including the text, photos, insufficiently
movies and videos; seeks sexually explicit specific &
jokes as well as images showing nude Feudale
women and partially-clad women,people records do not
engaged hi sex acts, and jokes and exist; 2.
statements about ethnic groups (see Denied —
61243); 2. Evidence of misuse of state insufficiently
computers and records on state time specific,
through transmitting sexually explicit repetitive and
emails; seeking jokes about Jerry Sandusky records do not
and his wife, Dottie Sandusky. This may exist; 3.
include images of Sandusky's faces on • Denied -
people•involved in sex acts. Also seeking • insufficiently
8
Final
Requestor Records Requested Recy'd Date Due Date Due Response
emails with name and dates of senders and specific,
recipients; any emails using the term repetitive and
"Sanduskiecr in text(see 61004); 3. not a record;
Evidence of misuse of state email systems • 4. Denied -
and state computers through sexually insufficiently
explicit emails sent between current specific,
employees between 2008-2012 that include repetitive and
• text, photos, images, movies and show • not a record.
nude or topless women, and men and
• women engaged in sex acts. Seeking
evidence of misuse by current employees
no longer under internal investigation, not
seeking disciplinary action that may have
been imposed rather requesting the names
and the evidence of misuse (see 60687);
and 4. Evidence of misuse of state email
systems and state computers through
sexually explicit emails sent between Fina
and other OAG employees between 2008-
2012 that include text, photos, images,
movies and show nude or topless women,
and men and women engaged in sex acts.
(see 58682)
Brad Bumsted 2010, 2011 & 2012 salary for Fina 10/30/14 11/6/14 12/9/14 To be granted
Pittsburgh Tribune- in part — ??
Review provided
(61451) personal
history card
9
Final
Requestor Records Requested Recy'd Date Due Date Due Response
w/certain info
redacted
Peter Hall Copies of email messages sent by the 10/31/14 11/7/14 Denied —
The Morning Call below listed current and fonner insufficiently
(61484) Pennsylvania justices and judges to any specific; not a
employee ofthe OAG between 2008 and record of this
2012 including but not limited to those agency; civil
recovered by Moulton: Castille, Baer, investigation
Eakin, McCaffery, Orie-Melvin, Saylor,
Stevens, Todd, Allen, Bender, Bowes,
Donohue,Elliott, Gantman, Jenkins,
La7arus, Mundy, Olson, Ott, Panella,
Shogan, Stabile, Wecht, Fitzgerald,
Musmanno,Platt, Stassburger, Covey,
Brobson, Cohn Jubelirer, Leadbetter,
Leavitt, McCullough, McGinley,
Pellegrini, Simpson, Colins, Friedman,
Quigley, Oler & Feudale
Karen Langley 4,000 emails involving Supreme Court 11/6/14 11/14/14 Denied — not a
Post-Gazette justices found in the email archives ofthe record & civil
Office of Attorney General, as cited by investigation
Pennsylvania Supreme Court Chief Justice and possibly
Ronald D. Castille in an Oct. 15 press exempt by
release from the Administrative Office of other
Pennsylvania Courts. Please include the exceptions
full contents of each email, including the such as atty-
sender, recipient(s), time and date, , work product,-
10
F
Requestor Records Requested Recy'd Date Due Da
forwarding history, body,links and any
attachments
Deanna Durante Emails depicting pornographic and it 11/24/14 12/3/14
NBC 10 sexually explicit images, video clips
motivational tools/ messages sent on tax
payer funded computers from 2008 to 2012
Remains Under Seal August 26, 2015

Exhibit
Remains Under Seal August 26, 2015

Exhi i E
Remains Under Seal August 26, 2015

Exhi it F
Remains Under Seal August 26, 2015

Exhibit G
Remains Under Seal August 26, 2015

Exhi
Remains Under Seal August 26, 2015

Exhibit I
,,
•

Exhibit .11
ItlE COURT OF COMMON PLEAS OF DAUPHIN COUNTY,PENNSYLVANIA

• Supreme Court ofPennsylvania
IN RE: 217 M.D. MISC. DKT.2010
THE THIRTY-THIRD STA IEWIDE
INVESTIGATING GRAND JURY * Dauphin County Common Pleas
* No. 1325 M.D.2010

Motion for Protective Order of Frank Fina
• Notice Number 1

OPINION AND ORDER
Krumenacker,J: Currently before the Court is the Motion for Protective Order filed by Frank

Fina, Esquire (Fina). On August 28,2014, Fina made the Motion seeking an order prohibiting

the Office of Attorney General(OAG)from responding to four requests made by media outlets

under the Right-to-Know Law (RTKL).65 P.S. §§ 67.101 — 67.3104(West 2014). The OAG

argues that such an order is improper as the Court lacks jurisdiction to entertain the Motion

where the materials sought do not relate to matters before the Grand Jury.

Between July 7,2014 and August 13,2014, the OAG received the following RTKL

requests:

- July 7, 2014 from the Pittsburgh Tribune-Review seeking "any emails or other

docnments on an internal AG review of pornographic emails sent among the current

and former AG stafffrom and to each other ..."

- July 29,2014 from the Morning Call seeking ``Electronic copies of personal,
non-
official, non-business emails depicting pornographic images, video clips and

sexually explicit motivational tools/messages sent on taxpayer-funded computers

and servers between 2008 and 2012 among and between employees of the

Pennsylvania Attorney General's Office,
- August 5, 2014 from the Philadelphia Inquirer seeking "all email traffic that is of a

personal nature and involves pornographic or otherwise professionally inappropriate

material to and from the work accounts offormer deputy attorney and fellow

former prosecutors .... and .... from 2009, until their departure from the office's

staff in late 2012 or early 2013. Please include all recipients ofthe email chains that

shared in this email and include the actual emails."

- August 11, 2014 from the Philadelphia Daily News seeking "all emails sent and/or

forwarded by former Chief Deputy Attorney General .... and/or his fowler

colleagues that include any pornogaphic and Or sexually explicit references, URL

links, photographs and/or videos."

- August 14, 2014 the Philadelphia Daily News amended its request to include "any

e-mail correspondence [that include any pornographic and or sexually explicit

references, URL links, photographs and/or videos] between .... and former

Attorney General Office employees and/or ...."

Fina argues that since the materials sought in the RTKL requests were discovered during an

internal OAG review ofthe handling ofthe Gerald Sandusky investigation conducted by H.

Geoffrey Moulton, Jr.(Moulton)they are protected by the secrecy provisions ofthe

Investigating Grand Jury Act(Act). 42 Ps. C.S.A. §§4541-4553(West 2014). The OAG argues

that the mere fact the material was uncovered initially during the Moulton review, during which

some information from the Sandusky grand jury investigation was disclosed pursuant to

disclosure orders, does not bring them within the secrecy associated with an investigative grand

jury as the materials were not gathered as part of an active investigation.

Page 2 of 10
)51q1..

that the mere fact the material was uncovered initially during the Moulton review, during which

some information from the Sandusky grand jury investigation was disclosed pursuant to

disclosure orders, does not bring them within the secrecy associated with an investigative grand

jury as the materials were not gathered as part of an active investigation.

For the reasons discussed herein the Motion is granted in part and denied in part as

outlined in the attached Order.

DISCUSSION
The very power ofthe grand jury, and the secrecy in which it must operate, call for a

strong judicial hand in supervising the proceedings. The seminal role ofthe supervising judge

of a grand jury was recognized by our Supreme Court in In Re Twenty—Fourth Statewide

Investigating Grand Jury, 589 Pa_ 89, 907 A.2d 505 (2006):

We are cognizant that the substantial powers exercised by investigating grand
juries, as well as the secrecy in which the proceedings are conducted, yield[]the
potential for abuses. The safeguards against such abuses are refleted in the
statutory scheme of regulation, which recognizes the essential role ofthe
judiciary in supervising grand jury functions.

907 A.2d at 512(citation omitted). Thus, Tennsylvania's grand jury process is 'strictly

regulated, and the supervising judge has the singular role in maintaining the confidentiality of

grand jury proceedings." Cam olo v. State Farm Fire and Casualty Co., 334 F.3d 345, 356 (3rd

Cir. 2003)(citation omitted)."The supervising judge has the continuing responsibility to

oversee grand jury proceedings, a responsibility whiCh includes insuring the solemn oath of

secrecy is observed by all participants." In re June 1979 Allegheny County Investigating Grand

Jury, 490 Pa. 143,415 A.2d 73, 78 (1980).

The traditional notion of secrecy in grand jury proceedings has long been recognized

•and preserved. Our Supreme Court discussed the need and rationale for such secrecy in In re

Page 3 of 10
Investigating Grand Jury of Philadelphia County, Appeal of Philadelphia Rust Proof Co., Inc.,

496 Pa. 452,437 A.2d 1128 (1981). In Rust Proofthe Court explained that

Grand jury proceedings have traditionally been conducted in secrecy. This
secrecy, which is indispensable to the effective functioning of a grand jury's
investigation, is designed

(1) To prevent the escape of those whose indictment may be contemplated;(2)
to insure the utmost freedom to the grand jury in its deliberations, and to prevent
persons subject to indictment or their friends from importuning the grand jurors;
(3)to prevent subornation of perjury or tampering with the witnesses who may
testify before grand jury and later appear at the trial ofthose indicted by it;(4)to
encourage free and untrammeled disclosures by persons who have information
with respect to the commission of crimes;(5)to protect innocent accused who is
exonerated from disclosure ofthe fact that he has been under investigation, and
from the expense of standing trial where there was no probability of guilt.

Id. at 457-58, 437 A.2d at 1 130-3 1 (internal quotations and citations omitted). The supervising

judge is tasked with maintaining the secrecy and integrity of grand jury proceedings. See Pa.

R. Cr. P. 224,225,229(West 2014).

In enacting the Act, the General Assembly sought to preserve the traditional rule of

secrecy in grandjury proceedings. The Act provides, in relevant part:

(b)Disclosure of proceedings by participants other than witnesses.—
Disclosure of matters occurring before the grand jury other than its deliberations
and the vote of any juror may be made to the attorneys for the Commonwealth
for use in the performance of their duties. The attorneys for the Commonwealth
may with the approval of the supervising judge disclose matters occurring
before the investigating grand jury including transcripts oftestimony to local,
State, other state or Federal law enforcement or investigating agencies to assist
them in investigating crimes under their investigative jurisdiction. Otherwise a
juror, attorney, interpreter, stenographer, operator of a recording device, or any
typist who tnnscribes recorded testimony may disclose matters occurring before
the grand jury only when directed to do so by the court. All such persons shall
be sworn to secrecy, and shall be in contempt of court ifthey reveal any
informafion which they are sworn to keep secret.

42 Pa. C.S.A. § 4549(b)(West 2014). Furthermore, although grand jury witnesses are generally

permitted to disclose their testimony to others, the supervising judge may prohibit such

disclosure "for cause shown." 42 Pa. C.S.A. § 4549(d)(West 2014). This secrecy, other than

Page 4 of 10
the deliberations and vote of the jurors, is not absolute and both statute and rule permits

specific disclosures. 42 Pa. C.S.A. § 4549(b)(West 2014);P . R. Cr.P.230(West 2014).

Our Supreme Court has adopted procedural rules to ensure the secrecy ofsuch

proceedings. See, Pa. Rs. Crim. P. 223, 224,225,229,230,231 (West 2014). In order to insure

the secrecy of grand jury proceedings and to convey the obligation and vital importance of

maintaining that secrecy the Act and Rules require secrecy oaths of all persons with access, no

matter how slight, to grand jury information. See,42 Pa. C.S.A. § 4549(b)(West 2014);Pa. R.

Crim. P. 224(West 2014). Thus all grand jurors, attorneys, interpreters, stenographers,judicial

staff, and any other persons present at, assisting with, or with access to grand jury materials or

proceedings must take a secrecy oath. Violation of the oath, whether intentional or accidental,

is grounds for a contempt proceeding against the violator. 42 Pa. C.S.A. § 4549(b)(West

2014).

Within the context of the Act and Rules "proceedings" refer to transcriPts, evidence,

records, grand jury sessions, and hearings on matters ancillary to the investigation itself. See

42 Ps. C.S.A. §§4541-4553(West 2014); Pa. Rs. Cr. P. 220-231 (West 2014). Thus secrecy

extends not only to matters that occur before the grand jurors but to all aspects ofthe

investigation including but not limited to communications between OAG staff(whether

attorneys or support staff), communications with counsel for witless, communications with co-

operating witnesses,transcripts of hearings, documents and other evidence acquired during an

investigation and in the control ofthe OAG.

When viewed in their totality the rationale for secrecy outlined in Rust Proof along with

the requirements ofthe Act and Rules require that grand jury secrecy extend beyond the gaud

jury chamber to encompass all materials related to a grand jury investigation and to all persons

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with access to those materials. The role served by such secrecy in these proceedings, outlined

in Rust Proof, would be eviscerated if it did not extend beyond the four walls. Often times vital

information in investigations is provided not through subpoenaed testimony but through

interviews with cooperating witnesses or information from victims who have expectafions that

information they share will be kept confidential and at times have agreements with the OAG,

which may include immunity agreements or agreements limiting the release and use of

information provided by the witness. Should information, which may include investigative

materials, notes, correspondence, videos and reports, related to these cooperating witnesses be

readily available it would lead to the very harms that grand jury secrecy seeks to avoid as well

as possibly placing such witnesses in danger.

Accordingly, to the extent that the emails sought by the RTKL requesters contain

information related to any grand jury investigations such emails are shielded by grand jury

secrecy unless a specific disclosure request is made. See,42 Pa. C.S.A. § 4549(b)(West 2014);

Pa. R. Cr. P. 230(West 2014). Even where such a request is made the emails may yet be

shielded from disclosure under the RTKL.

In addition to the protections afforded by grand jury secrecy the RTKL provides

protections to matters related to criminal investigations. 65 P.S. 67.708 (b)(16)(West 2014).1.n

pertinent part section 67.708 reads

(b)Exceptions.—Except as provided in subsections(c) and (d), the following
are exempt from access by a requester under this act:

(16) A record of an agency relating to or resulting in a criminal investigation,
including:

(i) Complaints of potential criminal conduct other than a private criminal
complaint.

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(ii) Investigative materials, notes, correspondence, videos and reports.
(iii) A record that includes the identity of a confidential source or the identity of
a suspect who has not been charged with an offense to whom confidentiality has
been promised.
(iv) A record that includes information made confidential by law or court order.
(v) Victim information,including any information that would jeopardize the
safety of the victim.
(vi) A record that, if disclosed, would do any ofthe following:
(A)Reveal the institution, progress or result of a criminal investigation,
except the filing of criminal charges.
(B)Deprive a person of the right to a fair trial or an impartial
adjudication.
(C)Impair the ability to locate a defendant or codefendant.
(D)Hinder an agency's ability to

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2831057. Public record. Not legal advice.