A top Bucks County corrections administrator questioned whether personal inmate information should be posted online before the county launched a publicly accessible website now at the center of the largest punitive damage award in Bucks County memory, according to legal documents in the federal class-action case.
The information contained in court records and trial testimony appears to contradict the county’s defense that its decision-makers didn’t know that releasing the information violated state law.
The new information comes as Bucks County’s attorneys attempt to overturn the nearly $68 million damage award that county officials described as potentially financially crippling.
So far the county has spent $2 million in legal costs fighting the lawsuit filed in December 2012, according to records obtained through a Right to Know request.
The final award could be reduced to between $46.6 million and $50.8 million based on eligible class members, according to recent court filings, but that is still more than double the $20 million the county anticipates it will have in its fund balance at the end of this year. The county’s insurance will not cover the award.
In an email request for comment, county spokesman Larry King responded that Deputy Director of Corrections Clarke Fulton would not be giving any interviews related to this or any other county litigation. King added the county does not discuss legal strategies.
Fulton, a previous captain of corrections administration, and former Director of Corrections Harris Gubernick, have been identified as the employees who authorized the expansion of the county’s online inmate lookup tool in January 2011, according to court filings.
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| Harris Gubernick |
Gubernick retired in February 2011 and now works as a corrections consultant. This news organization was unsuccessful in reaching Gubernick for comment after leaving multiple email and voicemail messages.
Attorneys representing the county in July filed petitions asking the court to reconsider the jury award, a precursor to filing an appeal with the US Court of Appeals for the Third Circuit. Among the requests is for a new trial, citing grounds including that the jury verdict contradicted the “great weight of evidence,” and the jury instructions on what constitutes “willfulness” were “erroneous and severely prejudicial.”
Bucks County disagreed with the court’s interpretation that it willfully violated the Criminal History Records Information Act, known as CHRIA, through “reckless disregard or indifference.” Officials have said the online tool was created to give victims a way to verify the whereabouts of defendants accused of crimes against them.
The 1980 law bars non-law enforcement agencies, including county jails, from sharing criminal records with the public. It imposes a mandatory punitive penalty of $1,000 to $10,000 for each violation.
The five-day jury trial in May stemmed from a lawsuit filed by Daryoush Taha, a Sicklerville, New Jersey, man whose personal information and mug shot appeared on the county’s inmate lookup tool 11 years after his 1998 arrest was expunged. The lawsuit was given class-action status, allowing thousands of people incarcerated at the jail between 1938 and 2013 to join. Each booking record constituted an individual CHRIA violation, the jury ruled.
The inmate lookup tool still exists, but in 2013, after the lawsuit was filed, the county removed virtually all personal information and mugshots.
Conflicting testimony
In trial arguments, county witnesses testified that prior to the Taha case, there were no legal opinions finding that inmate lookup tools violated CHRIA; that “sources” who vetted the website content saw no legal issues; and that other county inmate lookup tools posted the same or similar content.
Yet trial transcripts and court documents show that Fulton, who was promoted in 2017, had concerns about posting FBI and State Identification numbers, unique identifiers assigned to individuals with a criminal record.
Fulton testified that he knew through his Commonwealth Law Enforcement Assistance Network (CLEAN) training that FBI and SID numbers were confidential and could not be publicly released. He also testified that the county’s JNET Terminal Agency Coordinator manual listed the two numbers as confidential.
A copy of a 2008 meeting minutes for the county Information Services Department, which Fulton attended and the first version of the inmate lookup tool was discussed, noted that the Department of Corrections wanted SID and FBI numbers removed. They were not.
At trial, Fulton testified that his concerns about posting those inmate numbers were satisfied after he consulted with other law enforcement sources. But he added that Pennsylvania State Police told him those inmate numbers might be protected under CHRIA, according to trial transcripts.
A Jan. 24, 2011, email exchange between Fulton and Gubernick about the inmate lookup tool also suggests there were lingering questions, according to a copy of the email obtained by this news organization.
“The Inmate Look-Up tool publishes the DOB, SID, FBI# and marital status should these be public records?” Fulton wrote.
Fifteen minutes later, Gubernick replied: “Are they protected? I don’t think so... just no SS#.”
Two minutes later, Fulton responded, “I remember talking about this year’s (sic) ago. I guess I’m too conservative thinking when I see these numbers out there...”
Gubernick testified during the trial that he had taken the same specialized training on CHRIA as Fulton, including what criminal history information could only be shared with other law enforcement agencies, transcripts show. He testified he had never read the law or the Pennsylvania Attorney General’s Office CHRIA handbook.
“If (Gubernick) had read the handbook and reached an erroneous decision, an honest mistake, we wouldn’t be here,” Taha lead attorney Theodore Schaer said in his closing argument, according to transcripts. “Same thing with Captain Fulton. He read the handbook in 2003 and hadn’t read it again until this lawsuit, when he expressed his reservations, when he expressed his concerns, when they both did in their email. That’s being indifferent to their obligations.”
The conflicting testimony is among the reasons Bucks County faces an uphill battle in overturning the damage award, according to one veteran legal scholar who specializes in class-action lawsuits.
“There is zero chance of the county prevailing at this stage,” said Ken Jacobsen, a professor specializing in class action and mass tort litigation at Temple University’s Beasley School of Law who is familiar with the Taha class action suit.
Jacobsen said it is unlikely the Third Circuit will reverse the lower court’s interpretation of “willful” actions since nothing in the law suggests a willful violation requires the intent to cause harm.
“The county is arguing a standard that appears nowhere in the statute, and it is difficult, if not impossible, to prove ‘subjective’ misconduct,’” Jacobsen said. “You can probably do that by inference and circumstantial evidence, but I don’t think that is what the legislature had in mind when it passed CHRIA and provided a private cause of action for aggrieved plaintiffs.”
He added the county’s argument that the damage award is excessive also likely won’t hold up in appeal.
“The Third Circuit already has ruled previously in this case that, contrary to the county’s argument, the Pennsylvania legislature saw fit to allow punitive damages under CHRIA, even in the absence of any actual injury or compensable harm to the named plaintiff or other class members, so I think that argument by the county is DOA on appeal,” he said.
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