Luzerne County loses appeal regarding video surveillance footage request

Luzerne County lost its appeal attempting to stop the Citizens Advisory of Pennsylvania from accessing video surveillance footage of county buildings where ballots were processed and voting equipment was maintained around the time of the November 2022 general election.

The 2022 election drew intense scrutiny for paper shortages at polling places that forced the court to extend voting from 8 p.m. to 10 p.m. to help compensate.

County Court of Common Pleas Judge Lesa S. Gelb had upheld the Citizens Advisory’s request for access to the video surveillance footage in September 2023, affirming a final determination by the Pennsylvania’s Office of Open Records that the county had appealed.

The county retained Obermayer Rebmann Maxwell & Hippel LLP in Philadelphia to file the appeal in Commonwealth Court, according to prior reporting.

Commonwealth Court issued a decision this week affirming the county court decision.

The new opinion cites a procedural flaw made by the county and said the Commonwealth Court decision did not focus on the “substantive merits” of the county’s argument that access should be denied for building security and criminal investigatory reasons.

The county waived its argument of a building security exception because it had failed to “preserve” that issue in a required filing related to the case, the Commonwealth Court opinion said.

“The County’s procedural missteps bar any merits decision,” the opinion said.

However, it notes that the county did not prove that redacted records “implicated the personal security exception” and did not “establish a conflict with” the state’s Right-To-Know Law.

In response to the ruling, Citizens Advisory President Ben Herring said this is the third time his organization has obtained orders to provide access to the records.

“If the County chooses to appeal this matter to the Pennsylvania Supreme Court, taxpayers need to be aware they’ll be looking at another large expense on top of the $97,000 already spent by Luzerne County to date,” Herring said.

“While we respect the District Attorney and the subsequent investigation that was conducted into ‘Papergate,’ many questions remain unanswered, and the immediate appeals taken by Luzerne County officials to prevent disclosure on this matter remain alarming,” Herring said.

County Manager Romilda Crocamo said Thursday a cursory review of the new opinion “indicates that the decision was based on procedural irregularities rather than substantive shortcomings.”

“We will be conferring with outside counsel as to next steps,” Crocamo said.

In her September 2023 ruling, Gelb had ordered the county to make any necessary redactions to protect the identities of employees within 30 days, which would involve blurring faces. Within 30 days thereafter, Herring was directed to arrange inspection of the records subject to access provisions under state law.

Herring has repeatedly emphasized he is not interested in seeing the faces of workers and said he requested a viewing of the footage amid concerns about the election paper shortage. Herring has said he wants to see if anything appears amiss, stressing he would report anything suspicious to law enforcement.

Based on his understanding, the footage would cover the county-owned voter warehouse and Penn Place Building in Wilkes-Barre, he has said.