           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Milton Hershey School,                   :
                         Petitioner      :   CASE SEALED
                                         :
                   v.                    :   No. 665 C.D. 2019
                                         :   Heard: January 10, 2020
Pennsylvania Human Relations             :
Commission,                              :
                      Respondent         :



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge


OPINION BY
JUDGE COHN JUBELIRER                    FILED: February 11, 2020



      Before the Court is an Application to Intervene and Unseal filed by The
Philadelphia Inquirer, PBC (The Inquirer), seeking to intervene in the above-
captioned matter for the sole purpose of having the docket sheet and other judicial
records unsealed (Application). The Milton Hershey School (MHS or School), the
Pennsylvania Human Relations Commission (Commission), and Complainant, who
intervened in the above-captioned matter, filed responses setting forth their
respective positions.   Also before the Court is Complainant’s Application for
Leave to Respond to MHS’s Brief (Application to Respond) and MHS’s
Application for Leave to Submit Sealed Documents for In Camera Review
(Application to Submit Documents), to which The Inquirer filed an Answer
objecting. Oral argument was held before the Court on the Application on January
10, 2020, in which The Inquirer, the Commission, and MHS participated.
I.     Background
       Before addressing the current applications, it is helpful to understand the
unique procedural background of this matter. During ongoing proceedings before
the Commission on a complaint filed against the School, which had not yet reached
the public hearing stage, MHS filed a Motion to Dismiss for Lack of Jurisdiction
(Motion to Dismiss), claiming it was not a public accommodation under the
Pennsylvania Human Relations Act1 (Act).                    Without holding a hearing, a
Commission Motions Examiner denied the Motion to Dismiss, concluding that the
School was a public accommodation. MHS requested immediate certification for
appeal, which was denied. Thereafter, MHS filed a petition for review seeking
appellate review of the denial of the Motion to Dismiss under Pennsylvania
Appellate Rule of Procedure 1311 (note), Pa.R.A.P. 1311 (note).2                       Following
argument, the Court granted review, limited to the issue of “[w]hether [MHS]
qualifies as a ‘public accommodation’ under Section 4(l) of the . . . Act, 43 P.S.
§ 954(l).” Milton Hershey Sch. v. Pa. Human Relations Comm’n (Pa. Cmwlth.,
No. 651 C.D. 2019, filed June 26, 2019). It was on this limited issue that the
Court accepted jurisdiction; the matter otherwise remained with the Commission,

       1
           Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§ 951-963.
       2
           The note to Rule 1311 provides that:

       [w]here the administrative agency or lower court refuses to amend its order to
       include the prescribed statement, a petition for review under Chapter 15 of the
       unappealable order of denial is the proper mode of determining whether the case
       is so egregious as to justify prerogative appellate correction of the exercise of
       discretion by the lower tribunal. If the petition for review is granted in such a
       case, the effect . . . is the same as if a petition for permission to appeal had been
       filed and granted, and no separate petition for permission to appeal need be filed.

Pa.R.A.P. 1311 (note).



                                                2
with those proceedings stayed. Further, noting that, on the same day the Motion to
Dismiss was denied, the Motions Examiner issued an order maintaining the matter
under seal in accordance with the Commission’s regulations subject to the filing of
valid waivers by those whose private, confidential information could be at issue,
the reasons for the Motions Examiner’s decision to maintain the seal, and the fact
that the matter had not yet reached public proceedings before the Commission,
MHS requested that the seal be maintained by the Court, which the Court granted
following argument.
      Complainant sought reconsideration of the decision to seal the record.
Following argument on both the request for reconsideration to unseal the record
and on the merits of the limited issue accepted for appellate review, the Court
issued its decision. Milton Hershey Sch. v. Pa. Human Relations Comm’n, 220
A.3d 713 (Pa. Cmwlth. 2019). Therein, Complainant’s reconsideration request
was granted in part, to the extent that the Court issued a reported opinion
addressing the legal issues involved, which did not require reference to any of the
underlying facts related to the complaint or the actions taken after its filing. The
case and record otherwise continued to remain under seal. Id. at 715-16. On the
merits of the interlocutory petition for review, the Court vacated the Commission’s
order and “remanded [the matter] for an evidentiary hearing at which a record can
be created in order to resolve th[e] jurisdictional question, which is a determination
for the Commission in the first instance.” Id. at 722.
      With this procedural background in mind, the Court now turns to The
Inquirer’s Application, as well as the Application to Respond and Application to
Submit Documents, which are before the Court.




                                          3
II.      The Inquirer’s Application and Responses
      A. Intervention
         1. Arguments
               a. The Inquirer
         On December 4, 2019, the Inquirer filed its Application seeking to intervene
in the above-captioned matter for the limited purpose of asking that the record be
unsealed. (Application at 1, 4.) The Inquirer avers that the matter decided by the
Court in this case is one of significant public concern throughout Pennsylvania and
that allowing The Inquirer, as a daily newspaper that has previously reported on
matters involving MHS, to intervene vindicates the public’s constitutional and
common law rights to access the judicial records filed in this case.          Citing
Pennsylvania Rule of Civil Procedure 2327(4), Pa.R.C.P. No. 2327(4), The
Inquirer maintains that intervention is necessary for it to assert its “legally
enforceable interest” to access the docket and other judicial records. According to
The Inquirer, the right of the press to intervene for this reason has been recognized
by Pennsylvania Courts in both criminal and civil proceedings.             See, e.g.,
Commonwealth v. Upshur, 924 A.2d 642, 645 n.2 (Pa. 2007); PA Childcare LLC v.
Flood, 887 A.2d 309, 313 (Pa. Super. 2009). The Inquirer notes that MHS offers
no argument that it will be prejudiced by The Inquirer’s intervention beyond that
the School does not want the disclosure of any records in this matter.

               b. The Commission
         The Commission offers no argument in opposition to The Inquirer’s request
to intervene, agreeing with the general premise of The Inquirer’s arguments
relating to the public’s right to access judicial documents and records.




                                           4
                c. MHS
      MHS responds that The Inquirer’s request to intervene should be denied
with prejudice because it does not meet the requirements of Pennsylvania Rules of
Civil Procedure 2327 and 2329, Pa.R.C.P. Nos. 2327, 2329. First, MHS points out
that there is no matter pending before the Court, as required by Rule 2327, because
the underlying appeal has been resolved and that matter was remanded for further
proceedings. This Court has held, MHS argues, that a petition to intervene filed
after a dispositive order is filed is too late. Wecht v. Roddey, 815 A.2d 1146, 1153
(Pa. Cmwlth. 2002) (quoting Estate of Albright, 545 A.2d 896, 899 (Pa. Super.
1988)). Second, MHS argues the Application is untimely and unduly delayed
where The Inquirer had knowledge of the matter while it was initially pending
before the Commission and before the Court but did not seek intervention until a
month after the Court issued its opinion and order. According to MHS, it need not
establish that it would be prejudiced by the delay.                 Third, MHS asserts The
Inquirer’s interests have been adequately represented by Complainant’s counsel,
who has already pursued the very relief sought by the putative intervenor. Pa.
Assoc. of Rural and Small Schs. v. Casey, 613 A.2d 1198, 1200-01 (Pa. 1992)
(denying intervention where “the substance of [the parties’] positions covers the
substance of the positions proposed by [the intervenor]”). Finally, MHS contends
allowing The Inquirer’s intervention at this time would unduly prejudice MHS
because the appeal has been concluded, there has been no adversarial proceeding
or hearing of any kind on the underlying matter, and the underlying proceeding of
the Commission is confidential under Section 9(c) of the Act, 43 P.S. § 959(c).3

      3
          This section of the Act governs “Procedure” and provides, in pertinent part:

(Footnote continued on next page…)


                                                 5
       2. Discussion
       The Inquirer wishes to intervene in this matter, not to participate in ongoing
litigation, but for the sole purpose of asking the Court to unseal judicial records.
Although not argued by the parties, the Supreme Court has not required
intervention when the public wishes to unseal judicial records in a completed
judicial proceeding. In re Estate of duPont, 2 A.3d 516 (Pa. 2010). In duPont, a
member of the public filed a petition seeking access to records that had been sealed
by an orphan’s court in an incapacitation proceeding that had been resolved nearly
10 years prior to the petition for access. Id. at 517-18. No intervention was
required for the court to entertain the request to open records previously sealed,
and all three courts, orphans’, Superior and Supreme, addressed the request,
without requiring the petitioner to intervene in the previously resolved
proceedings.
       Citing precedent involving media intervention in active or ongoing
litigation, Upshur, 924 A.2d at 645 n.2 (citing Commonwealth v. Fenstermaker,
530 A.2d 414, 416 n.1 (Pa. 1987)), and PA ChildCare, LLC, 887 A.3d at 311, The
Inquirer argues that it should be granted Intervenor status. However, in accordance

_____________________________
(continued…)
       (c) . . . . If it shall be determined after [] investigation that probable cause
       exists for crediting the allegations of the complaint, the Commission shall
       immediately endeavor to eliminate the unlawful discriminatory practice
       complained of by conference, conciliation and persuasion. The members of
       the Commission and its staff shall not disclose what has transpired in the
       course of such endeavors: Provided, That the Commission may publish the facts
       in the case of any complaint which has been dismissed, and the terms of
       conciliation when the complaint has been adjusted, without disclosing, except as
       required by the Fair Housing Act, the identity of the parties involved.

43 P.S. § 959(c) (emphasis added).



                                              6
with duPont, because the limited proceedings before this Court have been resolved,
and the case closed, intervention pursuant to Pa.R.C.P. No. 2327,4 is not necessary
in this case for The Inquirer to assert its “legally enforceable interest” to access the
docket and other judicial records. Because the Court considers The Inquirer’s
Application as a petition to access this Court’s records, intervention is unnecessary
and to the extent the Application seeks intervention, it is dismissed as moot.

   B. Unsealing Docket and Judicial Records
       1. Arguments
              a. The Inquirer
       The Inquirer argues that Pennsylvania law mandates open and public judicial
proceedings and that the public and the press have a presumptive right to access
under the United States and Pennsylvania Constitutions, as well as under the
common law. PA Childcare LLC, 887 A.2d at 312. The burden to overcome the
presumption is on the party seeking closure of a record or case, The Inquirer
asserts, and general privacy concerns are insufficient to justify such relief.
According to The Inquirer, both the First Amendment to the United States
Constitution and article I, section 11 of the Pennsylvania Constitution allow for a
right of access to court proceedings and judicial records. Publiker Indus., Inc. v.
Cohen, 733 F.2d 1059, 1070 (3d Cir. 1984); PA Childcare LLC, 887 A.2d at 312;
In re M.B., 819 A.2d 59, 61 (Pa. Super. 2003); Katz v. Katz, 514 A.2d 1374, 1380
(Pa. Super. 1986). In determining whether the presumption of access applies to a
particular proceeding or document, The Inquirer argues, two considerations are
examined: “experience” – whether the proceeding or document is the type that has

       4
          Under Rule 2327, it is “[a]t any time during the pendency of an action, [that] a person
not a party thereto shall be permitted to intervene therein . . . .” Pa.R.C.P. No. 2327.



                                               7
historically been open to the press or general public; and “logic” – whether public
access would play “a significant positive role in the functioning of the particular
process in question.” (Application ¶ 13 (quoting Press-Enter. Co. v. Superior
Court of California, 478 U.S. 1, 8-9 (1986) (Press-Enterprise II)).) The Inquirer
argues that the constitutional right to access may only be overcome if closure
serves a compelling governmental interest and is the least restrictive means of
furthering that interest. Publicker, 733 F.2d at 1070; In re M.B., 819 A.2d at 63.
With regard to the common law right to access, The Inquirer points out that the
Supreme Court has held the right applies to “any item that is filed with the court as
part of the permanent record of a case and relied on in the course of judicial
decision-making.” (Application ¶ 17 (quoting Upshur, 924 A.2d at 648).) When
this right applies, The Inquirer argues, “it must be weighed against any asserted
interests in secrecy to determine whether sealing is justified.” (Id. ¶ 18 (citing
Upshur, 924 A.2d at 651).) Applying these principles here, The Inquirer contends,
should result in the unsealing of at least part of the judicial records in this matter
because the privacy issues must be minimal given that Complainant has attempted
to unseal the record. (Id. ¶ 27.) Such records include, The Inquirer argues, the
docket sheets and the briefs and reproduced record filed in support or opposition to
MHS’s appeal.       According to The Inquirer, any confidential or sensitive
information could be or should have been filed separately under seal, particularly
in an appellate matter where the issue was primarily legal, not factual, in nature.
Further, The Inquirer argues, the decision to maintain records or portions of
records under seal must be supported by specific findings supporting that decision.
      The Inquirer acknowledges that the record made before the Commission, the
agency record, was sealed, and that it does not seek disclosure of that record.



                                          8
However, The Inquirer argues that the reproduced record, even though it contains
portions of the sealed agency record, should be unsealed because once it was filed
with the Court, it became a judicial record and contains materials that the parties
believe would be important to the Court’s decision. The Inquirer asserts the public
has a constitutional right to access the parties’ arguments related to whether MHS
is a public accommodation under the Act and which the Court considered in its
decision-making process. The Inquirer challenges MHS’s reliance on the various
statutory and regulatory provisions regarding confidentiality and privacy, as such
involve Complainant’s, not MHS’s, interests, and Complainant has expressed a
desire to waive those protections. To the extent interests of third parties may be
involved, The Inquirer states it is not seeking that information.

             b. The Commission
      The Commission “agrees with the general premise of [T]he Inquirer’s
argument that the public has certain rights to inspect court dockets and related
documents,” and the Commission holds public hearings where probable cause has
been found to believe the Act has been violated. (The Commission’s Answer ¶
11.) However, the Commission also acknowledges that the underlying matter was
sealed by its Motions Examiner subject to the submission of valid waivers and that
MHS argued in its requests to seal that the record and submissions in this matter
would contain information relating to multiple subjects made confidential by
various statutes. Given the public interest in the case, the Commission “requests
that this . . . Court remand the case . . . to permit” the filing of valid waivers, which
could, ultimately, render The Inquirer’s Application moot. (Id. ¶ 15.)




                                           9
               c. MHS
      MHS argues The Inquirer’s request to unseal should be denied beyond
unsealing the docket sheet, which MHS does not oppose, because the public’s right
to access court and judicial records is not absolute and must be weighed against the
competing needs and interests of those whose confidential information is contained
in those records, particularly when the information is subject to statutory or
regulatory protection. Stenger v. Lehigh Valley Hosp. Ctr., 554 A.2d 954, 959 (Pa.
Super. 1989). First, MHS maintains the records are investigative materials and the
briefs are replete with information protected from disclosure by federal and state
law, including Section 9(c) the Act; Section 708 of the Right-to-Know Law, which
governs the exceptions to public disclosure of public records, 65 P.S. § 67.708;5
multiple provisions of the Health Insurance Portability and Accountability Act
(HIPAA), which govern the protection of medical information from public
disclosure, 45 C.F.R. §§ 160.103(1), 164.502, 164.514(b)(2)(ii); and provisions of
the Family Educational Rights and Privacy Act (FERPA), which govern the
protection of educational records from public disclosure, 20 U.S.C. § 1232g. MHS
argues the Commission’s contention that a valid waiver by Complainant would
render all of the records available is incorrect as confidential information of others
may be implicated and is inconsistent with the Commission’s past practice of
denying non-party access to preliminary investigative findings and proceedings.
      Second, MHS asserts there is no constitutional right to access the records
because The Inquirer’s request does not meet the experience/logic test, as pretrial
discovery materials are not subject to a constitutional right to public access.
Stenger, 554 A.2d at 958. According to MHS, the Commission’s investigative

      5
          Act of February 14, 2008, P.L. 6.



                                              10
materials and proceedings up to this point, which have not been open to the public,
are akin to pretrial discovery, and do not satisfy the “experience” prong of the
constitutional test. The Commission record, which is a prehearing, confidential
record, MHS argues, does not satisfy the “logic” prong. MHS further argues that
the records filed with the Commission, which would otherwise be confidential, are
not rendered publicly accessible judicial records subject to disclosure simply
because the School had to include them as part of its reproduced record in its
efforts to seek redress from the Court to remedy a legal error made by the
Commission.
      Third, MHS argues that simply because a record or document is filed with a
court does not, automatically, make it a judicial record; rather, the filing must have
“adjudicatory significance.” N. Jersey Media Grp. v. United States, 836 F.3d 421,
435-36 (3d Cir. 2016). It asserts that the Court’s reported opinion in this case
made clear that nothing in the record before the Commission formed the basis of
the Court’s decision to vacate the Commission’s order. Thus, MHS maintains,
materials contained within the reproduced record filed with the Court are not
judicial records because they were not relied upon by the Court in its opinion.
Because the Court specifically set forth the arguments, statutory provisions, and
precedent it relied upon, the School argues no other filings are subject to public
disclosure as “judicial records” because they were not of “adjudicatory
significance” to the Court’s decision in this case. MHS asserts there is good cause
to deny The Inquirer’s request to unseal because The Inquirer’s reporter,




                                         11
Complainant’s counsel, and others have acted together to publicize confidential
information in the past to MHS’s detriment.6
       Finally, MHS observes that this Court considered similar arguments in
opposition to sealing the records from Complainant and concluded that the record
should be sealed. According to MHS, the Court should reject further attacks on the
Court’s determination when nothing has changed.

              d. Complainant
       Complainant filed an Application to Respond to MHS’s Brief, which the
Court grants.7 Complainant challenges MHS’s reliance on Section 9(c) of the Act.
Complainant observes that this provision only requires confidentiality by the
Commission or its staff on the endeavors taken to resolve unlawful discrimination
via conference, conciliation, and persuasion.             Complainant contends there is
nothing, statutorily, stopping Complainant from publicly disclosing other items.
Complainant further responds that the other statutory or regulatory provisions that
MHS relies upon do not prohibit disclosure once the subject of the record waives
the subject’s confidentiality and privacy interests.




       6
          Although MHS made specific allegations in this regard it is unnecessary to go into
further detail because those allegations are not relevant to whether this record should be
unsealed. Further, as MHS’s Application to Submit Documents relates to materials associated
with these arguments, and the Court does not rely on those contentions, MHS’s Application to
Submit Documents is denied as irrelevant.
        7
          Because the Court’s disposition does not rely on certain of MHS’s allegations, which
Complainant characterizes as “casting unwarranted aspersions” on Complainant’s counsel and
conspiracy theories, (Application to Respond at 1), similar to MHS’s allegations, the Court will
not consider or set forth those arguments.



                                              12
      2. Discussion
            a. Guiding Legal Principles
      There is no dispute that “[o]ur courts have recognized a constitutional right
of public access to judicial proceedings” under both the United States and
Pennsylvania Constitutions, as well as an independent common law basis for such
access. Pa. ChildCare, LLC, 887 A.2d at 312 (internal quotations and citations
omitted). Thus, there is a “mandate for open and public judicial proceedings in
both the criminal and civil settings.” Id. The right to open and public judicial
proceedings includes “a general right to inspect and copy public records and
documents, including judicial records and documents.” Fenstermaker, 530 A.2d at
418 (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 602 (1978)). These
rights are “not absolute, as the public may . . . be excluded from such proceedings
or records to protect public or private interests.” duPont, 2 A.3d at 519 (internal
quotations and citations omitted); see also Fenstermaker, 530 A.2d at 420 (stating
“the common law right to inspect documents . . . has not been held to be absolute,”
but there is a presumption of openness). Pennsylvania courts have “recognized in
many contexts that our courts have an inherent power to control access to their
records and proceedings and may deny access when appropriate—for example, to
protect the privacy rights of individuals.” In re M.B., 819 A.2d at 62. Importantly,
“general concerns for harassment or invasion of privacy” are not sufficient to
support closure. Commonwealth v. Long, 922 A.2d 892, 906 (Pa. 2007).
      In asserting the public’s right to access to the sealed judicial records in this
matter, The Inquirer asserts, based on common law and constitutional principles,
that the Court must begin with a presumption of openness and that MHS has the
burden of rebutting that presumption. The Inquirer challenges the Court’s orders,



                                         13
one of which is itself still sealed, on the basis that the Court did not make the
findings necessary to support such orders.
      In duPont, the Supreme Court emphasized that, in determining whether to
grant public access to a sealed record, its analysis was guided by the nature of the
underlying proceedings, there, incapacity and guardianship proceedings, in which
“the common-law presumption of openness ha[d] been substantially curtailed
through legislative enactment. . . .” 2 A.3d at 522. See Section 5511(a) of the
Probate, Estates and Fiduciaries Code, 20 Pa. C.S. § 5511(a) (which allows for the
closure of incapacity proceedings to the public). In this context, the Supreme
Court rejected the idea that the burden forever remained on the party who sought to
seal or to retain the seal on the record because “[s]uch an approach would be, at
best, inflexible” and “at odds with the concept that the constitutional mandate is
not absolute.” duPont, 2 A.3d at 524-25. Rather, the Court permitted flexibility
“in view of the courts’ supervisory powers over their records.” Id. at 525. For
these reasons, the Supreme Court held that neither the common law nor
constitutional law requires a court to place the burden of demonstrating the need
for continued confidentiality whenever a non-litigant seeks access to the record in
an incapacity proceeding. Id. at 521, 525. Rather, in that context, the burden lies
on the individual seeking public access to the records to “demonstrate good cause”
to modify the order sealing the matter, an approach that respects a court’s prior
order, while also providing a means through which the public can seek to access
those records. Id. at 525.
      In this case, the Court did issue an order sealing the court records, which,
upon reconsideration, the Court largely affirmed. However, because this case is
not an incapacity or guardianship proceeding in which “the presumption of



                                        14
openness has been substantially curtailed,” it is unclear whether the Supreme
Court’s discussion of the burden in duPont, would apply here. To the extent The
Inquirer had to “demonstrate good cause” for the Court to review its sealing order,
the Court finds that there is reason for it to rebalance its previous considerations
regarding public access based on The Inquirer’s contentions.
      We begin by “highlighting that a request to seal or unseal judicial records is
a matter committed to the discretion of the . . . court” whose records are at issue.
duPont, 2 A.3d at 521 (citing Upshur, 924 A.2d at 651). In reviewing public
access to judicial records, there are two methods of analysis: a constitutional
analysis and a common law analysis. In re M.B., 819 A.2d at 62 n.2. “[T]here is
[an] overlap between the common law and the constitutional inquiries, since both
rights of access seek to foster the fairness and the appearance of fairness of the . . .
justice system.” Long, 922 A.2d at 897. The inquiry begins with a presumption of
openness. In addressing the constitutional right of access, courts have “adopted the
‘experience and logic’ test.” Id. at 900-01. The experience test “considers whether
there has been a ‘tradition of accessibility,’” and the logic test considers “‘whether
public access plays a significant positive role in the functioning of the particular
process in question.’” Id. at 900 (quoting Press-Enterprise II, 478 U.S. at 8). “In
conducting the ‘logic’ inquiry, [the court] must balance two competing concerns –
the value of openness . . . that enhances the fairness and perception of fairness in
the . . . justice system versus the . . . privacy concerns” involved. Id. at 903. “If
the right asserted is grounded in both experience and logic, then a right of access to
the proceedings in question exists.” Id. It is then the burden of the party seeking
closure to “rebut the presumption of openness by showing that closure serves an




                                          15
important governmental interest and there is no less restrictive way to serve that
interest.” In re M.B., 819 A.2d at 63 n.2.
      The common law approach requires “the party seeking closure [to] show that
[the] interest in secrecy outweighs the presumption of openness.” Id. “Where the
presumption of openness attached to a public judicial document is outweighed by
circumstances warranting closure of the document to public inspection, access to
the document may be denied.” Fenstermaker, 530 A.2d at 420. Thus, under the
common law approach, “the public may be ‘excluded, temporarily or permanently,
from court proceedings or the records of court proceedings to protect private as
well as public interests[, including]: . . . the privacy and reputations [of innocent
parties] . . . .’” Katz, 514 A.2d at 1377 (quoting In re Nat’l Broad. Co., 653 F.2d
609, 613 (D.C. Cir. 1981)) (first alteration added).
      Access to judicial records may be limited by other principles as well, such as
statutory or regulatory provisions or court rules. For example, access to “files and
records of the court in a proceeding under” the Juvenile Act is limited, and those
materials are disclosable to the public under only very limited circumstances.
Section 6307 of the Juvenile Act, 42 Pa. C.S. § 6307. Similarly, this Court is
bound by the Case Records Public Access Policy of the Unified Judicial System of
Pennsylvania (Public Access Policy) adopted by the Pennsylvania Supreme Court.
The Public Access Policy recognizes the importance of the public’s access to the
courts, but also acknowledges that court filings may contain “extensive amounts of
personal data concerning individuals’ finances, unique identifiers, medical history,
and so on” and the need for courts to consider “issues regarding the need for
openness and transparency and the concern for personal privacy and security.”




                                         16
Explanatory Report of the Public Access Policy at 1-2.8 Sections 7 and 8 of the
Public Access Policy address how to file “Confidential Information” and
“Confidential Documents” with the Court, as such information and documents are
not subject to access by the public. Notably, both sections reflect that they are “not
applicable to cases that are sealed,” meaning that none of the relevant redactions or
special filing of forms apply to sealed cases as those cases are not accessible to the
public. See Section 7.0(A) and Commentary, and Section 8.0(A) and Commentary
of the Public Access Policy.
        In applying these principles, the Court is mindful that access to court records
is to

        assure the public that justice is done even-handedly and fairly; to
        discourage perjury and the misconduct of participants, to prevent
        decisions based on secret bias or partiality; to prevent individuals
        from feeling that the law should be taken into the hands of private
        citizens; to satisfy the natural desire to see justice done; to provide for
        community catharsis; to promote public confidence in government
        and assurance that the system of judicial remedy does in fact work; to
        promote the stability of government by allowing access to its
        workings, thus assuring citizens that government and the courts are
        worthy of their continued loyalty and support; to promote an
        understanding of our system of government and courts.

Fenstermaker, 530 A.2d at 417.

              b. The Records at Issue
        The Inquirer characterizes the records here as either “agency records,” those
that were filed with the Commission in the first instance and transferred to the
Court upon the filing of MHS’s petition for review, or “judicial records,” those that

        8
          The Public Access Policy and Explanatory Report are available at
http://www.pacourts.us/public-records/public-records-policies (last visited February 7, 2020).



                                             17
were filed with or by the Court. Acknowledging that the “agency records,” at the
time of argument, are sealed by the Motions Examiner’s sealing order, The
Inquirer does not ask this Court to unseal them. The Inquirer is requesting the
Court to unseal “judicial records,” which are “item[s] that [are] filed with the court
as part of the permanent record of a case and relied on in the course of judicial
decision-making,” Upshur, 924 A.2d at 648, as well as orders of the Court. MHS
relies, in part, on its assertions that Complainant made similar arguments regarding
public access and that there has not been any change in the circumstances, to argue
that the seal on all of the records, other than the docket sheet, should remain intact.
It points to the sealing of the matter by the Commission, as well as statutory and
regulatory reasons, for denying the Application.
      However, there has been a change in the interests asserted and in the
circumstances. Although MHS asserts Complainant made the same arguments as
The Inquirer, Complainant’s interest, as a party with access to all of the filings and
a personal stake in the outcome of the litigation, is different from the public’s
interest at large. Unlike a party with an interest in the outcome of the litigation
and, therefore, whose arguments are furthering the advocacy of the party’s
position, The Inquirer’s interest in “raising assertions of the public rights of access
to information” in court records is for the public. Fenstermaker, 530 A.2d at 416
n.1. Further, the litigation in the underlying appeal is now concluded, thereby
allowing the Court to review the finally filed records in light of the public interest
asserted by The Inquirer and rebalance that important interest with the protected
privacy interests of those involved. In doing so, the Court notes that many of the
records that concern MHS are in the materials filed with the Commission.




                                          18
      The Court is mindful that there were records filed with the Court involving
minors, and their medical and educational information, which had been sealed by
the Commission. Such records implicate serious privacy concerns. Further, MHS
filed its Petition for Review asking this Court to decide a discrete legal issue. The
matter remains with the Commission, there have been no factual findings, and any
allegations of fact as they relate to any students or third parties are sealed by the
Commission. The opinion of this Court on the discrete legal issue of jurisdiction
was not dependent upon any of these factual allegations.            The Court also
recognizes MHS’s argument that, if the Commission does not have jurisdiction
over it as a public accommodation, the preliminary proceedings before the
Commission would not become public. For these reasons, and given the nature of
the interlocutory appeal that was before this Court, which was to decide a discrete
legal issue in an ongoing agency proceeding, the Court will not unseal the records
that were sealed by the Commission, and the information relating to individuals
who were minors when the events relevant to the underlying complaint occurred.
      With this reasoning in mind, the Court will examine whether to unseal: (1)
the docket sheet; (2) the agency records; (3) orders of the Court; (4) the reproduced
record; (5) MHS’s Petition for Review; (6) appellate briefs addressing the merits of
whether MHS is a public accommodation; and (7) other miscellaneous filings.

         i. The Docket Sheet
      Because there is no disagreement that the docket sheet can be unsealed, it
shall be unsealed after initials are substituted for Complainant’s name.




                                         19
         ii. The Agency Record and Supplemental Record
      Because there is no disagreement that the agency record, which includes the
supplemental agency record filed on July 31, 2019, should remain sealed, those
filings shall remain sealed.

         iii. Orders of this Court
      After review of the Orders of the Court, the following do not contain any
private information of individuals or MHS and shall be unsealed: Orders dated
June 5, 2019; June 13, 2019; June 17, 2019; June 26, 2019; August 21, 2019;
August 22, 2019; November 21, 2019; December 3, 2019; December 9, 2019;
December 16, 2019; December 18, 2019, of which there are two; December 19,
2019; and January 2, 2020. The Court’s November 4, 2019 Opinion and Order
shall also be unsealed. Copies of the Orders dated July 24, 2019, July 25, 2019,
and August 9, 2019, will be made available after initials are substituted for
Complainant’s name.

         iv. The Reproduced Record
      The Inquirer seeks to unseal the reproduced record, which was filed with the
Court by MHS, on the basis that it is a “judicial record” and the Court must have
considered its contents in its decision-making process. The Inquirer is not seeking
access to the agency record, which is sealed before the Commission. However, the
reproduced record is comprised of parts of the agency record, which the appellate
procedural rules require the petitioner to file with the Court. In essence, it is
nothing more than a copy of parts of the agency record. This copy of the agency
record is required for the convenience of the court and the parties because it would
be difficult for multiple judges and the parties to rely solely on one original paper


                                         20
record, which has to be carefully protected at all times. The mere fact that the
agency record was copied in compliance with the rules does not necessarily
transform the copy into something other than the agency record it was. This is
particularly the case here.
      It cannot be said that there is a “tradition of accessibility” to documents
already under seal and precluded from public disclosure or that “public access”
to already sealed documents would “play[] a significant positive role in the
functioning of the particular process in question,” here, a very limited appeal
addressing a discrete legal issue, so as to meet the experience and logic prongs of
the constitutional test for access. Long, 922 A.2d at 900 (quoting Press-Enterprise
II, 478 U.S. at 8). Continuing the protection of the documents that are already
under seal and respecting the decision of an administrative agency to seal its
record, while the matter is still pending before that agency, is a compelling
governmental interest, and maintaining the seal on copies of those documents is the
least restrictive means of furthering that interest.
      Balancing the public’s interest in access, as asserted by The Inquirer, with
the important privacy interests of those whose confidential and privileged
information may be contained within the records. Although the public’s interest in
access is unquestionably important, the Motions Examiner’s sealing of the matter
in the first instance reflects the countervailing importance of the multiple privacy
interests that are implicated in these materials.      The common law approach
recognizes that the public may be “excluded . . . from court proceedings or the
records of court proceedings to protect . . . the privacy and reputations [of innocent
parties].” Katz, 514 A.2d at 1377. In sealing the matter, the Motions Examiner
was concerned for not only Complainant’s privacy interests, as reflected in the



                                           21
conclusion that a sufficient waiver had not been provided, but also for third parties
whose confidential and privileged information could be disclosed to the public in
the proceedings before the Commission. The Court shares these same concerns
regarding the accessibility of confidential and privileged information to the public
in the absence of valid waivers by those whose information is contained in the
reproduced record, which was filed only because MHS sought to redress an error
unrelated to that information. Balancing these competing interests results in the
conclusion that the reproduced record should remain under seal.

         v. The Petition for Review
      The Petition for Review, although it does contain some factual information
that is under seal, is comprised in large part of MHS’s legal arguments to this
Court. This document, having been filed of record with the Court and considered
by the Court in granting MHS permission to appeal, is a judicial record. The
Petition for Review can, therefore, be unsealed except for Section IV B. in the
Statement of the Case, specifically paragraphs 54 – 85 and associated footnotes,
which will not be disclosed as they contain material that has been sealed. Further,
the Appendix to the Petition for Review contains documents that were sealed by
the Commission; therefore, the Appendix to the Petition for Review will also
remain sealed.    Complainant will be identified by initials in the Petition for
Review. MHS is directed to exchange a proposed redacted version of its Petition
for Review with the Commission and Complainant within 10 days of this Opinion
and Order and to promptly file a certificate of service with the Court.          The
Commission and Complainant shall have 10 days to review the proposed
redactions and to make a good faith effort to resolve any disputes that may arise.
The final form of the redacted Petition for Review shall be filed with the Court on


                                         22
March 3, 2020. MHS is directed to file an extra paper copy of the redacted
Petition for Review with the Court to be provided to The Inquirer.

         vi. Appellate Briefs
      The Inquirer seeks access to the appellate briefs in which the parties to the
underlying appeal set forth their arguments regarding MHS’s status as a public
accommodation under the Act for the Court’s consideration. These documents are
judicial records, as they were filed with the Court, and whether the Court found all
the arguments persuasive or not, the Court read the briefs and was informed by
their presentation as they related to the discrete legal issue before the Court.
Consistent with the previous discussion regarding the underlying facts and
proceedings, which remain under seal before the Commission, the Court will grant
The Inquirer’s request subject to the following redactions:

    MHS’s Brief:       Sections B and C of the Statement of the Case, and
      Appendices A and B;

    Commission’s Brief: The first paragraph of the Introductory Statement, and
      the case citation to the underlying case before the Commission included in
      the table of authorities;

    Complainant’s (Intervenor) Brief: None;

    MHS’s Reply Brief:           Introduction, and the references to Complainant’s
      name found on pages 8, 18, and on the Proof of Service.

The parts of the appellate briefs set forth above shall be redacted from the briefs.
MHS, the Commission, and Complainant are directed to exchange the proposed


                                           23
redacted copies of the briefs within 10 days of this Opinion and Order and to
promptly file a certificate of service with the Court. MHS, the Commission, and
Complainant shall have 10 days to review the proposed redactions and to make a
good faith effort to resolve any disputes that may arise. The final form of the
redacted briefs shall be filed with the Court on March 3, 2020.          MHS, the
Commission, and Complainant are directed to file an extra paper copy of the
redacted briefs with the Court to be provided to The Inquirer.

         vii.     Other Miscellaneous filings
      After review of the other filings submitted to the Court and given the
previous explanation regarding maintaining the seal on certain materials, the
following items, and their associated Proofs of Service, will remain under seal:
    MHS’s Application to File Under Seal filed June 3, 2019;
    MHS’s Application to Stay filed June 3, 2019;
    MHS’s Answer to Complainant’s Application for Partial and Prospective
      Reconsideration-Reargument (Application for Reconsideration) filed July
      17, 2019;
    The parties Joint Stipulation to Correct the Record filed July 19, 2019;
    MHS’s Answer to Complainant’s Reply to MHS’s Answer to the
      Application for Reconsideration filed on August 13, 2019; and
    Complainant’s Response to MHS’s Brief in Opposition to the Application to
      Intervene and Unseal filed on January 7, 2020.

In addition, the PACFile automatically-generated proofs of service, that are already
of record, will remain under seal as they contain Complainant’s name.




                                         24
     The following filings will be unsealed, after initials are substituted for
Complainant’s name:
   MHS’s Application to Expedite filed June 3, 2019;
   The Commission’s Application to Quash filed June 7, 2019;
   The Commission’s Entry of Appearance filed June 7, 2019;
   MHS’s Praecipe to File Verifications filed on June 7, 2019;
   Complainant’s Notice of Intervention filed on June 14, 2019;
   Complainant’s Application for a Continuance filed June 14, 2019;
   MHS’s Answer to Complainant’s Application for a Continuance filed June
     17, 2019;
   Complainant’s Application for Reconsideration filed on July 3, 2019;
   Complainant’s Reply to MHS’s Answer to the Application for
     Reconsideration filed on July 31, 2019;
   MHS’s Praecipe for Withdrawal of Appearance filed on August 15, 2019;
   MHS’s Entry of Appearance filed on August 19, 2019;
   MHS’s Application for Relief filed on August 21, 2019;
   MHS’s Notice of Authority filed on October 31, 2019;
   MHS’s Application to Amend Order of November 4, 2019 (Application to
     Amend) filed on November 14, 2019;
   MHS’s Application for Extension of Time to File Answer filed on December
     11, 2019;
   MHS’s Entry of Appearance filed on December 11, 2019;
   MHS’s Application For Leave to Submit Sealed Documents for In Camera
     review (Application to Submit Documents) filed December 31, 2019; and




                                      25
    Complainant’s Application for Leave to Respond to Brief of MHS in
      Opposition to The Inquirer’s Application to Intervene and Unseal filed on
      January 7, 2020.
Further, consistent with the previous discussion regarding the underlying facts and
proceedings, which remain under seal before the Commission, Section II(A) of
MHS’s Answer to The Inquirer’s Application to Intervene and Unseal, which was
filed on December 30, 2019, shall be redacted.       MHS, the Commission, and
Complainant are directed to exchange the proposed redacted copies of these items
within 10 days of this Opinion and Order and to promptly file a certificate of
service with the Court. MHS, the Commission, and Complainant shall have 10
days to review the proposed redactions and to make a good faith effort to resolve
any disputes that may arise. The final form of the redacted items shall be filed
with the Court on March 3, 2020. MHS, the Commission, and Complainant are
directed to file an extra paper copy of the redacted items with the Court to be
provided to The Inquirer.

      The following filings will be unsealed without redaction:
    The Commission’s Entry of Appearance filed June 14, 2019;
    The Commission’s Answer to MHS’s Petition for Review filed June 17,
      2019;
    The Commission’s Entry of Appearance filed on July 29, 2019;
    The Commission’s Answer to MHS’s Application to Amend filed
      November 25, 2019;
    The Inquirer’s Application to Intervene and Unseal filed December 4, 2019;
    The Inquirer’s Applications to be Admitted Pro Hac Vice filed December
      10, 2019;


                                        26
    The Inquirer’s Praecipes to Withdraw Applications to be Admitted Pro Hac
      Vice filed December 17, 2019;
    The Inquirer’s Applications to be Admitted Pro Hac Vice filed December
      17, 2019;
    The Inquirer’s Application for Leave to File Supplemental Memorandum in
      Further Support of the Application to Intervene and exhibits filed December
      17, 2019;
    The Inquirer’s Supplemental Memorandum of Law filed December 17,
      2019;
    The Commission’s Answer to The Inquirer’s Application to Intervene and
      Unseal filed December 18, 2019; and
    The Inquirer’s Answer to MHS’s Application to Submit Documents filed
      January 7, 2020.

   III.   Conclusion
      The Inquirer did not have to intervene in order to pursue the unsealing of the
judicial records in this closed matter.       The Court recognizes the important
principles relating to public access to judicial records and the role that the press
plays in informing the public, the privacy interests involved, and the fact that the
seal imposed on the record by the Motions Examiner of the Commission remains
in place, and will grant The Inquirer’s request to unseal to the extent set forth
above. All other filings, including the certified record filed with the Court by the
Commission, shall remain under seal as they have at the Commission. To the
extent the Application is not granted, it is denied without prejudice so that, in the
event the Commission unseals any portion of the agency record that had been filed
with this Court as part of the reproduced record, or other circumstances change,


                                         27
The Inquirer is not precluded from filing a new Application seeking access to
additional records.



                                   _____________________________________
                                   RENÉE COHN JUBELIRER, Judge




                                     28
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Milton Hershey School,                   :
                         Petitioner      :   CASE SEALED
                                         :
                   v.                    :   No. 665 C.D. 2019
                                         :
Pennsylvania Human Relations             :
Commission,                              :
                      Respondent         :


                                      ORDER


      NOW, February 11, 2020, after considering the application filed by The
Philadelphia Inquirer, PBC (The Inquirer), to intervene and unseal the record
(Application), the answers filed by the Milton Hershey School (MHS), the
Pennsylvania Human Relations Commission (Commission), and Complainant, an
intervenor in the underlying petition for review, and oral argument, the Application
is DISMISSED AS MOOT in part, GRANTED in part, and DENIED
WITHOUT PREJUDICE in part in accordance with the foregoing opinion. The
Application is DISMISSED AS MOOT to the extent The Inquirer requested to
intervene in the above-captioned matter for the limited purpose of seeking to
unseal the docket sheet and judicial records. The Application is GRANTED as set
forth in the foregoing opinion. MHS, the Commission, and Complainant are
directed to exchange the proposed redacted copies of the items referenced in the
foregoing opinion within 10 days of this Order and to promptly file a certificate of
service with the Court. MHS, the Commission, and Complainant shall have 10
days to review the proposed redactions and to make a good faith effort to resolve
any disputes that may arise. The final form of the redacted items shall be filed
with the Court on March 3, 2020. MHS, the Commission, and Complainant shall
file an extra paper copy of the redacted items with the Court to be provided to The
Inquirer. The Application is DENIED WITHOUT PREJUDICE to the extent
the agency record and supplemental agency record filed by the Commission with
the Court remains under seal. The Application is otherwise DENIED WITHOUT
PREJUDICE and the other materials filed with the Court as set forth in the
foregoing opinion shall remain under seal. In addition, the Application for Leave
to Respond to MHS’s Brief in Opposition to the Application filed by Complainant
is GRANTED, and MHS’s Application for Leave to Submit Sealed Documents for
In Camera Review is DENIED.



                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge
