By Brittany Hailer
Allegheny County and Philadelphia County are the only counties in Pennsylvania where autopsy reports from coroner and medical examiners offices are not available to the public, according to state law.
Allegheny County has argued in court that a requestor for an autopsy must prove that they can determine liability in a death. Judge W. Terrence O’Brien determined that an investigative journalist cannot determine liability and therefore is not entitled to the autopsy of an incarcerated individual who died.
That determination came as a result of a Right-To-Know request made by the Pittsburgh Institute for Nonprofit Journalism that was appealed to Common Pleas Court by the county.
The initial RTK request was granted by the state Office of Open Records.
PINJ has been challenging the Pennsylvania Coroner’s Act and the county’s refusal to overturn autopsy records in court in an effort to seek transparency in the death of an Allegheny County Jail detainee, Daniel Pastorek.
According to the Coroner’s Act, coroners of first and second-class counties are not required to file their records with the county court system, or prothonotary. That means the records are not made public.
County classes are determined by population, according to Melissa Melewsky, an attorney at the Pennsylvania NewsMedia Association. Philadelphia and Allegheny are the only first and second class counties in the state, respectively; the remaining counties range between the classifications third through eighth.
But it wasn’t always this way. The Conroner’s Act was changed in 2018 by the Pennsylvania General Assembly to exempt Allegheny and Philadelphia counties from filing autopsy records with the county court system.
“The level of accountability shouldn’t be based on where you live and if you live in a more populated area,” said Melewsky. “Coroners and Medical Examiners are still serving the government function and their accountability should be the same.”
Daniel Pastorek died in the Allegheny County Jail on Thanksgiving Day 2020. He was 63 years old.
Two incarcerated people who were housed with Pastorek in the acute mental health housing unit told PINJ that Pastorek cried out for medical attention for days. He complained of chest pains, vomited, and seemed disoriented, incarcerated persons said. They remembered him as the elderly man with the walker. One man said he was haunted by Daniel’s death, and said he felt like he was watching himself die on the floor of the cell.
After learning of these reports, and, in order to determine if such allegations were true, PINJ filed at Right-to-Know for Pastorek’s autopsy. A month after filing the request, the Allegheny County Medical examiner provided PINJ with the cause of Pastorek’s death– atherosclerotic cardiovascular disease–but denied access to the autopsy records. The medical examiner argued that the autopsy records are exempt from disclosure because Allegheny County is a second-class county.
Had Pastorek died in the Butler County Jail, Beaver County Jail, Westmoreland County Jail or crossed any other local county boundary, his records would be available for review.
In March 2021, rhe Office of Open records granted PINJ the autopsy report and the county appealed the case to Common Pleas Court. Judge O’Brien reversed the final determination of the Office of Open Records.
In his December 2021 ruling, O’Brien said that the real issue in this case is section 1252-B of the Coroner’s Act which stipulates that in order to be entitled to the autopsy reports, the requester must qualify as a “nongovernmental agency” seeking “to determine liability for the death of the deceased.”
PINJ submitted a brief to the court, explaining how an investigative journalist can determine liability of the death of an incarcerated person including seeking “to uncover systemic inequities by shining a light on … public officials and government institutions” and seeking to determine “whether conditions at the Allegheny County Jail contributed to Mr. Pastorek’s death.”
O’Brien wrote in his determination: [PINJ] investigations are a “laudable activity,” but, “Nevertheless, the legal process is not directly implicated in such inquiries. Section 1252-B must be read more narrowly than argued by Requester to have any real meaning. Otherwise, anybody with a good cause seeking information about a death would be entitled to access under it.”
A requester having to prove that they can determine liability is a new argument, said Melewsky.
“I can say that’s very different to how access had been governed up until this point.” said Melewsky. “I don’t think that covers the legislative intent of the law. Access to this kind of record creates accountability.”
When an incarcerated person, or any person in Allegheny County, does not have Next-of-Kin to request an autopsy record, accountability and transparency diminishes, Melewsky said.
“It’s problematic for people who don’t have next of kin. Not only are families served by the coroner in determination of matter or death, it is society as a whole,” said Melewsky. “Society as whole is entitled to understanding how a coroner determines death, and they can hold them accountable.”
PINJ appealed Judge O’Brien’s decision to the Commonwealth Court. That case is pending. Paula Knudsen Burke, the Reporters Committee’s Local Legal Initiative attorney in Pennsylvania, is representing Hailer and the Pittsburgh Institute for Nonprofit Journalism in this case.
To mark Sunshine Week, Point Park University’s Center of Media Innovation, the Pittsburgh Institute for Nonprofit Journalism (PINJ) and the Press Club of Western Pennsylvania will hold a discussion about the successes and roadblocks in obtaining public records that reveal the realities of correction facilities, police departments and other institutions on Tuesday, March 15 at noon at the CMI. Register here.
Brittany Hailer can be reached at Bhailer08@gmail.com. Follow her on Twitter @BrittanyHailer.