Wednesday, October 21, 2009

criminal records - expungement - divulging of expunged record not a due process violation

Nuñez v. Pachman - 3d Circuit - August 26, 2009

Disclosure of an expunged criminal record held not to violate the federal due process clause.

The fact that a New Jersey statute law mandates removal of an expunged record from all public documents does not create a reasonable expectation of privacy in this information.

Because expungement is available only after a minimum statutory period of ten years has elapsed, and because references to a defendant’s criminal conduct may persist in public news sources after expungement, the information expunged is never truly “private.”

Even if the state recognizes a privacy interest in an expunged criminal record, the court decided that "such an interest is not cognizable under the federal constitution," whose protection of privacy is "significantly narrow that the right of privacy protected by state tort law." (emphasis in original) The state statute does not "harden the right of privacy into a constitutional right."

Query: Does Pennsylvania constitution offer greater protection of privacy that New Jersey's? See, Seth Kreimer, "The Right to Privacy in the Pennsylvania Constitution," in The Pennsylvania Constitution: A Treatise on Rights and Liberties at 785-819.

UC - subpoena duces tecum - enforcement, cost of producing records

Hahn v. UCBR - Cmwlth. Court - October 21, 2009 - unreported memorandum opinion

Subpoena duces tecum
The UCBR did not err in failing to enforce a subpoena duces tecum against the employer, where the phone company and not the employer was in possession of the relevant records.

Cost of producing records - 43 P.S. 826
The employer raised the excessive cost of producing records as an issue in the case. The decision did not involve this issue, but the court noted that "neither party in this case cites to or relies upon...43 P.S. § 826 [sec. 506 of the UC Law] to argue that the fee to be paid to [phone company] for production of the phone records should have been set by the Board and paid out of the Board’s Administration Fund.

Section 506 states, in relevant part: The department and the board shall have power to issue summons or subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda, and other records deemed necessary as evidence in connection with a disputed claim or the administration of this act. . . . Witnesses subpoenaed pursuant to this act shall be allowed reasonable fees and expenses at a rate fixed by the department. Such fees and all expenses of proceedings involving disputed claims shall be deemed a part of the expense of administering this act and shall be paid from the Administration Fund. 43 P.S. § 826 (emphasis added). As neither party has argued that the Board should have fixed a fee for the production of the records, and paid such fee, we shall not address the issue sua sponte.