Attorney Henry E. Hockeimer, Jr., left, and former Mayor Stephen Reed after Reed’s arraignment July 14 on corruption charges.
The defense team for Stephen Reed has asked a judge to order Harrisburg to pay some of Reed’s legal fees, as part of an ongoing and increasingly bitter fight over access to city records from the former mayor’s tenure.
In his Jan. 29 filing, Henry Hockeimer, of the Philadelphia firm Ballard Spahr, disputed the city’s reasons for withholding documents he is seeking under the state open records law, claiming they are “entirely personal” and without legal merit.
Hockeimer argued the city’s responses have shown “bad faith” and asked the court to require Harrisburg to pay the costs of what he described as the “frivolous litigation” forced by the administration’s withholding of records.
Hockeimer first requested the documents in July, after a state grand jury approved a sweeping array of charges against Reed in an ongoing corruption probe. The city so far has declined to provide them, claiming among other reasons that doing so would force it to violate a judicial gag order and break grand jury secrecy rules.
Hockeimer sharply critiqued those claims in his filing, arguing the city has released similar records to news outlets without complaint. He cited four news stories, including one published by TheBurg, that he said proved the city denied him access “solely because he represents Stephen Reed.”
Two of those stories, one appearing in the Patriot-News and one on abc27, refer to right-to-know requests partially granted by the city this year, although for much narrower sets of records than those requested by Hockeimer in July.
TheBurg article, published in the spring of 2015, detailed receipts of Reed’s purchases that were provided to the magazine by a different entity altogether. Hockeimer’s filing claimed the city provided the receipts, though they were, in fact, provided by Capital Region Water, the successor agency to the Harrisburg Authority.
Reed submitted the receipts to the Harrisburg Authority to support his request for a $33,000 reimbursement in 2003. The article identified Capital Region Water as the source of the documents, but that information was omitted in the legal filing.
The filing similarly mischaracterized a 2012 Patriot-News article, which referred to Harrisburg Authority documents provided in response to a right-to-know request. Nick Malawskey, the article’s author, confirmed Thursday the records were provided by the authority, not the city.
Hockeimer also said the city discriminated against Reed because of his “alleged criminal conduct.” He cited a prior filing in the case, in which the city said it was “fundamentally unfair and unjust” to force the costs of a vast records request by an alleged criminal upon a purported victim of the crime.
City solicitor Neil Grover stood by that argument Wednesday night, saying that the rights of victims of alleged crimes were also relevant in the case, and not only questions about open records laws.
Grover also denied the city had acted in bad faith and said Harrisburg would “fight a question about the awarding of fees as far as the courts will allow us to go.”
“We have acted in good faith,” he said. “If there’s anyone who’s acted in bad faith, it’s the requestor.”
A representative of Ballard Spahr said on Thursday that Hockeimer is out of the country until next week. Terence Grugan, another attorney at the firm identified as also representing Reed on the Jan. 29 filing, said he had no comment.
Findings of bad faith by an agency in records requests do occur, but are exceedingly rare, according to Erik Arneson, director of the state Office of Open Records. Of the 13,000 or so requests that have been appealed to his agency, fewer than 10 have later resulted in a judge making a bad faith finding, Arneson said.
Arneson said he was “extremely confident” in his agency’s prior analysis, which held that at least some of the records, which would have been deemed public prior to any criminal investigation, did not suddenly become privileged because of their more recent connection to a grand jury probe.
At the same time, he said the intersection of open records law and laws regarding grand jury secrecy was “not a settled area,” and that he understood why the city appealed his agency’s finding.
“I don’t fault the city for making the arguments they’re making,” Arneson said. “They’re being cautious. I get where they’re coming from.”
Judge Kevin Hess heard arguments last month on the records case, after the city appealed the Office of Open Record’s prior finding.
Hess is a former Cumberland County president judge who was appointed to oversee Reed’s criminal case after Dauphin County recused itself. He asked the city to submit a legal brief on the records issue, which he is also overseeing, by this Friday.
