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August 13, 2007

DA, News resolve seized computer case

By John K. Manna

A case involving the alleged recording of telephone interviews by a New Castle News reporter has been resolved.

Lawrence County District Attorney John Bongivengo and The News reached an agreement yesterday, and Senior Judge Michael J. Wherry issued an order effectuating the resolution.

A day earlier, Wherry had issued an order requiring the return of a News computer seized July 25 by New Castle Police Sgt. Kevin Seelbaugh, who was acting on a search warrant issued by District Judge Melissa A. Amodie.

The warrant was issued in response to a complaint by Northwest Lawrence Regional Police Chief James B. Morris. Morris alleged that News reporter Pat Litowitz had recorded telephone interviews with him and Mahoning Township Supervisor Francis "Poncho" Exposito without their consent and, in doing so, had violated Pennsylvania's privacy law.

Yesterday's order required The News to remove from the computer and other recording devices any audio recordings obtained without the consent of the party whose communication was being recorded. The computer and audio recording devices then were to be returned to The News.

The order states that The News shall implement a policy requiring its reporters to obtain the consent of a party prior to recording any conversation involving the party. However, "This provision shall not apply to any recordings of public proceedings where consent is implied or other recording permitted by law."

In exchange for those provisions, the commonwealth has agreed not to prosecute Litowitz for any alleged violations of a section of the state Wiretapping and Electronic Surveillance Control Act.

The order concludes by acknowledging that The News "specifically denies" that the conduct in which Litowitz allegedly engaged is a violation of the law.

News publisher Max Thomson said of the resolution: "I appreciate the effort by District Attorney Bongivengo and the New Castle police department to bring this matter to a wise and prudent conclusion.

"Formalizing a policy for gaining permission before recording any interview makes sense and is in keeping with our efforts to be as open and transparent as possible with sources and interview subjects."

Bongivengo said, "I think it's a good resolution."

The News is willing to establish a policy "which is in compliance with the law," he said, and "we don't spend five years in court fighting over the constitutionality of the law.

"Nobody was injured ... with the exception of a little bit of pride."

Bongivengo said he discussed the agreement with Seelbaugh, and he was satisfied with it.

"People elected me to prosecute, but it's also a matter of using your discretion."

News attorney James W. Manolis agreed that it is a good resolution.

After Wherry issued the order, Manolis said that he, Bongivengo, Thomson and Litowitz went to the city police station. Litowitz showed police there were no recordings pertaining to the allegations in the complaint on the computer, and it was returned to The News.

Also present were Seelbaugh, police Lt. Abram Smith and attorney Thomas Leslie, who represented Litowitz.

Even though the case has been resolved, Bongivengo said he believes state law was violated.

Manolis, though, maintains that there was no violation, saying that when a public official speaks to a news reporter who is gathering information for a story, "Does he have a reasonable expectation of privacy. I think the answer is no."

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