From the Editors: DOJ involvement in Greenberg case shows failure of Pennsylvania’s transparency law

There are plenty of lessons to draw from the most recent development involving the Ellen Greenberg case. One of them is about the transparency — or lack thereof — in Pennsylvania’s laws.

Greenberg, as you probably know, was a 27-year-old first-grade teacher who was found dead in a Philadelphia apartment she shared with her fiancé in 2011. She was stabbed 20 times, and her family has been on a years-long crusade to get the cause of death changed from suicide to homicide — something that would naturally launch a criminal investigation.

The most recent development is the U.S. Department of Justice is launching its own investigation into the matter.

(For now, it’s important to say we’re setting aside all of the previous likely investigatory mistakes that appear to have led to a major travesty of justice. This editorial focuses only on the involvement of the DOJ.)

Remember that in the course of the Greenbergs’ advocacy, Ellen’s case has been re-reviewed by the Philadelphia District Attorney’s office, then the Chester County District Attorney’s Office, then by the Pennsylvania Attorney General, at a time when Gov. Josh Shapiro occupied that role.

All states have laws that allow citizens to request documents produced by the government, and each of those laws has a list of exceptions that allows the government to withhold the document if it meets the requirements of a particular exception.

The biggest “hole” in Pennsylvania’s RTK law is the investigation clause which, generally speaking, says a document produced in the course of an investigation — even a noncriminal investigation — may be withheld from public disclosure.

The DOJ’s involvement in this matter shows how over-broad and often-abused that exception has become in this state.

First, let us say, it’s important, especially in criminal investigations, that detectives and prosecutors be able to manage the flow of information to the public. Releasing too much information too soon could tip off the perpetrators of just how close the hounds are to the trail or cause other unnecessary complications.

But at the same time, the “investigations” clauses shield so much information, it’s impossible for citizens and journalists to do even the most basic fact-checking and verification of what cops and prosecutors said they did as part of their jobs.

In the Greenberg case, for example, Shapiro’s attorney general office had the case for two whole years before washing its hands of the matter, saying it found new information that supported the suicide theory. 

The problem is, the public, and journalists especially, have no mechanism by which to review anything that the AG’s office may have done. Filing a Right To Know request for documents related to the office’s work on the Greenberg case would produce nothing. It’s part of a pattern of Shapiro stonewalling the press — and many in the mainstream press are happy to let him keep getting away with it.

When the state is so untransparent, it is inevitable that people searching for the truth will look to the feds — hence the DOJ getting involved.

Consider that just last month, a reporter for Fideri News got the results of an appeal to the Office of Open Records after she filed a request for documents related to a suicide (as deemed by the police) that a family is questioning. The reporter got nothing from the police department as a result of the RTK, and the appeal was just as fruitless.

This is not the case in other jurisdictions. For example, Broad + Liberty’s chief investigative reporter used to work in Colorado, and has stories of filing records requests for the entire case files from the Denver District Attorney — and winning access to them.

Achieving this level of transparency should be viewed as a win-win that would transcend right-vs-left politics, much in the same way police body cameras do. Body cameras not only help root out bad behavior of individual police officers, but they also allow innocent officers wrongly accused to stand vindicated.

It is easy to understand anyone who looks at the DOJ’s recent move and believes it is a Trump administration attempt to cause trouble for Democrat Josh Shapiro. We won’t argue the pros or cons of that idea.

But this is beyond dispute: the involvement of the DOJ tells us Pennsylvania’s access laws are so secretive that the only fail-safe becomes the federal government. It’s a failure and an black eye for open government in Pennsylvania.