Turnpike must show documents in grand jury probe

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The Pennsylvania Turnpike Commission has been barred from invoking attorney-client privilege before an investigating grand jury, the state Supreme Court has ruled.

Writing for the majority, Chief Justice Ronald D. Castille said the commission will not be able to invoke attorney-client privilege to keep the state office of attorney general from obtaining documents it requested in grand jury subpoenas.

The subpoenas were served in connection with a grand jury probe of Turnpike Commission employment and procurement practices, the court said in its opinion. The probe began in 2009.

The justices' ruling upholds the decision of the judge overseeing the grand jury. The supervising judge was also upheld in holding that the state attorney general has been granted the right to review all books and papers of the state agency, under the Commonwealth Attorneys Act.

Justice Castille reasoned that, because the public is the main client of government agencies, claims of privilege in government documents had no place under the circumstances of the grand jury subpoena.

The "'client' is not simply the agency or the individual employees of the agency, or the public officials themselves, but rather the public, whose money funds their operations, and whom all of these individuals serve," he said, noting the court's 2008 ruling in Castellani v. Scranton Times, in which it held that attorney-client privilege benefits the client.

Justice Castille also observed that federal courts have "similarly concluded the attorney-client privilege does not apply in this particular context -- where the 'client' is actually the state government or its agency--as it normally applies in the private sector."

Justices Max Baer, J. Michael Eakin, Debra M. Todd and Seamus P. McCaffery joined the opinion.

Joe Peters, a spokesman for the attorney general's office, said the office is pleased the high court accepted its position.

"The Commonwealth Attorneys Act directs OAG to prosecute public corruption statewide," he said in an email. The "decision significantly enhances our ability to do just that."

The Turnpike Commission, in its initial response to the subpoena, offered a compromise over what it viewed as privileged information. It was an offer that lawyers in the attorney general's office rejected.

The impasse then went before Supervising Judge Barry F. Feudale, who rejected the commission's claims of privilege in an 18-page opinion.

That was the opinion the Turnpike Commission asked the Supreme Court to review. In its petition, the commission said it has already turned over 140,000 pages of documents, including emails, which it is providing prosecutors on a "rolling basis."

Matthew Haverstick of Conrad O'Brien argued the case on behalf of the Turnpike Commission.

He did not immediately respond to a request for comment.

Max Mitchell: mmitchell@alm.com or 215-557-2354. Read more stories like this at www.thelegalintelligencer.com.

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