Appellate brief filed in Morris case
by Timothy Cwiek
Apr 24, 2014 | 1643 views | 0 0 comments | 62 62 recommendations | email to a friend | print
An appellate brief was filed this month in support of PGN’s request for an unredacted dispatch record relating to the Nizah Morris case.

In 2008, the city’s Police Advisory Commission gave PGN a copy of a redacted dispatch record in the case. The paper is seeking an unredacted version from the Philadelphia District Attorney’s Office.

Morris was a transgender woman who became a homicide victim in 2002, shortly after entering a police vehicle for a Center City “courtesy ride.”

The case remains unsolved, and Morris’ advocates are calling for a state probe.

It’s believed the unredacted dispatch record could help explain why Morris’ initial set of police-tracking numbers were permanently voided at the 911 call center.

Once those numbers were voided, responding officers had no obligation to document the courtesy ride. Detectives didn’t learn about it until several days after Morris was declared a homicide victim on Dec. 25, 2002.

The dispatch record, also known as a time-response log, is a public record under the state’s Right-to-Know Law.

Last year, PGN gave the D.A.’s Office a copy of the redacted dispatch record and requested an unredacted version, citing the RTKL.

The D.A.’s Office denied the request, indicating it didn’t have any dispatch records relating to the case.

But a subsequent attestation of non-existence provided by the D.A.’s Office didn’t name the person who performed the search, nor did it specify the record searched for.

Typically, homicide records are filed under the victim’s legal name. Morris’ legal name was Robert G. Morris. But the D.A.’s Office gave no indication that it searched under Morris’ legal name.

Additionally, the D.A.’s Office failed to cite supporting legal authority when denying the request, as required by the RTKL.

Melissa B. Melewsky, media law counsel for the Pennsylvania NewsMedia Association, said it’s important for agencies to fully explain public-record denials.

“The RTKL places the burden of proof on agencies to fully explain public-record denials and provide adequate proof supporting their position,” Melewsky said. “In cases where agencies claim a record does not exist, it is critically important that government affiants have direct knowledge of the search for records in the case because the affidavit is often the only ‘proof’ offered in an appeal. Factual hearings are rare at the administrative-appeal level, and affidavits are used in place of testimony. Agency employees would not be able to testify that records do not exist if they didn’t have direct knowledge of the search. And they should likewise be prohibited from claiming non-existence in an affidavit if they cannot affirm direct knowledge of the search. The administrative appeal is intended to offer a free, quick and simple appeal to records denials and it is often the only appeal citizens can pursue, since it does not involve the cost and time involved in formal legal proceedings. Agencies need to provide the best evidence possible in order to fully effectuate the intent of the law. And affidavits from employees without direct knowledge are not the best evidence, and could lead to additional litigation or inappropriate denials.”

Melewsky also said an agency should specify the record that doesn’t exist in its possession, custody or control.

“It’s critically important that agencies denying access describe, in detail, the search and specific records so that requesters can be confident that the agency’s denial is appropriate,” she continued. “Again, this is vital because in many cases, the requester cannot pursue formal legal action and the law requires agencies to act in good faith when dealing with records requests.”

Finally, Melewsky noted that an agency is required to cite supporting legal authority when denying access to a requested record.

“Section 903 of the RTKL requires agencies to cite to specific legal authority supporting their basis for denial. This basic rule guides agencies denying access and keeps the public informed. Without this critical information, the public cannot understand or analyze the agency’s basis for denial, making appeals more common and more difficult.”

The matter remains pending before Philadelphia Common Pleas Judge Nina Wright Padilla.

The deadline for a reply brief from the D.A.’s Office is May 5.

Oral arguments are scheduled for 9 a.m. June 2 in City Hall Courtroom 426.

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