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The Pittsburgh Post-Gazette has lost its bid to use the Right to Know Act to force the city of Pittsburgh to disclose a settlement struck with a former police officer. Former Officer Jeffrey Cooperstein was fired by Mayor Tom Murphy after he fatally shot a black man during a police chase in December 1998. A jury later acquitted him of homicide charges and found that he was justified in using deadly force to stop the driver. In May, Cooperstein struck a deal with the city in which he agreed to retire if Murphy rescinded his firing. Cooperstein has undergone treatment for multiple sclerosis. The newspaper was trying to find out whether the agreement also allows Cooperstein to receive financial benefits such as disability and workers’ compensation, pension payments or back wages. City Solicitor Jacqueline Morrow has declined to provide details, saying “such information is not necessarily subject to public disclosure under the Right to Know Act.” To support her claim, Morrow cited Frommer v. Department of Labor and Industry, 667 A.2d 35 (Pa. Cmwlth. 1995), a 1995 Commonwealth Court decision in which the court found that compensation payable records are not public documents within the meaning of the act. “In addition, Mr. Cooperstein’s employment file, including his resignation in light of his medical condition, is protected from disclosure by local, state and federal law,” Morrow wrote in a letter to the Post-Gazette’s attorney, Kevin Abbott of Reed Smith Shaw & McClay in Pittsburgh. “State law prohibits access to an employee’s file absent a signed authorization from the employee.” In a ruling issued recently in PGPublishing Co. v. City of Pittsburgh, PICSCase No. 00-1363 (C.P. Allegheny June 12, 2000) Dauer, J. (7pages), Allegheny County Common Pleas Court Senior Judge Robert E. Dauer agreed, saying, “I am constrained to agree with the city that the settlement agreement contains confidential information that squarely fits within the exclusion of the Right to Know Act.” He cited a 1992 Commonwealth Court case, Mirror Printing Co. v. Altoona Area School Board, in which the board met privately to discuss disciplinary action against a teacher and reached a settlement with him. The Altoona Mirror newspaper sued when the board declined to disclose the contents of the agreement. In that case, the court concluded that the board acted properly. Dauer wrote, “Not only does [the Pittsburgh agreement with Cooperstein] resolve disciplinary issues as in the Mirror case, but [it] is said to contain confidential information concerning Cooperstein’s medical status.” Abbott had argued that the Post-Gazette did not want access to Cooperstein’s medical information and said unlike the agreement in the Mirror case, the city’s settlement with Cooperstein likely required the city to spend public money. The newspaper has not yet decided whether it will appeal Dauer’s ruling to the Commonwealth Court, Abbott said. To buttress his case, Abbott had cited Morning Call Inc. v. Lower Saucon Township, a 1992 Northampton County case that was later upheld by the Commonwealth Court, 27 A.2d 297 (Pa. Commw. 1993). In that case, the court held that a settlement agreement between the township and a private citizen was a public record, even though the agreement did not require the township to pay the citizen directly and the parties had made a confidentiality agreement. “The public is entitled to know what agreement the city made to resolve its disputes with Cooperstein,” Abbott wrote. “Access to the public record has already been delayed for an unreasonable period of time and further delays would be contrary to the Right to Know Act and the public policy fostering an open government.” In a brief supporting his case, Abbott cited North Hills News Record v. Township of McCandless, 722 A.2d 1037 (Pa. 1999), a 1999 case that defined public records in two ways: records “dealing with the disbursement of funds” and those “fixing the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons.” “The settlement agreement at issue here is a public record under both categories,” Abbott wrote. Though Morrow said the city did not agree to pay Cooperstein out of its operating budget, Abbott argued that that issue was irrelevant, saying whether there is payment or not, “the city has obviously agreed to act or not act in a certain way with regard to Officer Cooperstein’s claims. Either way, the agreement is ‘dealing with’ public funds.” For her part, Morrow argued that the agreement was not a public record because it fell under an exclusion in the Right to Know Act that includes documents “which would operate to the prejudice or impairment of a person’s reputation or personal security.” She also cited the working agreement between the city and the Fraternal Order of Police Lodge No. 1, which requires that disciplinary proceedings remain confidential unless an arbitration award is appealed to the Court of Common Pleas. “The public’s right to have access to public records of an agency is not without restrictions,” Morrow wrote in a brief co-authored by Assistant City Solicitor Hugh McGough. “It must be balanced, under certain situations, with the right of the individual, through his authorized collective bargaining representative, to seek confidentiality concerning a disciplinary matter.”

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