Bucks County will appeal the verdict in a federal class action lawsuit that has the potential to cost $68 million in damages, an amount that would have a significant impact on county services, Commissioners Chairman Robert Loughery said Wednesday.
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| Robert Loughery |
“Suffice to say we are all — disappointed isn’t a strong enough word,” Loughery said Tuesday. “We believe we have many solid grounds which to appeal and we will pursue them vigorously.”
His comments come the day after a federal jury in Philadelphia found the county and its corrections system violated the privacy rights of up to 66,799 individuals incarcerated at the county jail between 1938 and 2013 when it posted protected criminal information on a publicly accessible website and awarded $1,000 in punitive damages for each violation. If the damage award stands, the county’s insurance company won’t cover the payout.
The verdict followed a five-day trial in U.S. District Court involving a class action lawsuit originally filed in 2012 by lead plaintiff Daryoush Taha, of Sicklerville, New Jersey, who claimed his old arrest information and mugshot appeared on a searchable electronic database created by Bucks County, roughly 11 years after his arrest information was ordered expunged after he completed a trial diversion program.
In 2016, a federal judge granted the case class action status, opening the door for potentially tens of thousands of individuals who were held or incarcerated at the Bucks County jail between 1938 and 2013, whose information was posted on the county database. The inmate lookup tool was revamped in 2013 removing most arrest information and mugshots; the only public information available for county inmates now is the name, birth date and booking number.
Theodore Schaer, the lead attorney in the case, contends top county correction officials failed to seek the advice of the county’s solicitor in 2011 before launching an updated version of its inmate locator tool, which expanded the amount of inmate information posted, to make sure it met relevant laws including the Pennsylvania Criminal History Record Information Act, known as CHRIA.
The 1982 state law limits the public dissemination of individual criminal history records to state and local law enforcement and prosecutors, and specified that county government entities, including jails, can only release such information to state and county agencies, not the public. The law mandates a punitive damage assessment of $1,000 to $10,000 for each violation.
Schaer said that emails showed that correction officials at the time questioned whether they were posting protected criminal information, but failed to take additional action. He added that the county offered no testimony during the trial that it updated inmate information to reflect changes, such as dropped or expunged charges, or protected information only accessible to law enforcement.
In a phone interview, Loughery confirmed the county corrections department was responsible for maintaining the website, and it’s his understanding that the county was not notified that Taha’s 1998 arrest in Bensalem had been expunged.
In a county press release Wednesday, Loughery repeated the county does not believe its inmate lookup tool violated CHRIA, “much less that the county willfully violated the act.” Bucks County is one of many in the state that has maintained inmate lookup tools that contain the same or similar information, and there was no suggestion at the time that the tool violated CHRIA or any other law.
Bucks County launched the inmate lookup website to provide crime victims information to enable them to verify the whereabouts of individuals accused of crimes against them, following the lead of the Office of Victim Advocate’s Statewide Automated Victim Information Notification program known as SAVIN, Loughery said.
SAVIN provides the public with general information including a physical description, custody status and location of offenders held in county and state jails, including Bucks County. It has never posted mugshots of inmates, according to Jennifer Storm, the state victim advocate.
Neighboring Montgomery County hasn’t had a county inmate lookup tool for “quite a while,” county spokesman John Corcoran said.
Schaer maintains that SAVIN is a different database used for victim notification when an offender’s status changes.
Attorney Ken Jacobsen, who has specialized in class action lawsuit for three decades, and teaches class action and mass tort litigation at Temple University’s Beasley School of Law, believes the jury reached the correct verdict and interpretation of the CHRIA statute.
Nothing in the law suggests that a willful violation requires an entity intend its actions to cause harm, he said. The county’s argument that other counties have similar inmate lookup tools doesn’t hold water either, he added.
“What others are doing, at the end of the day, doesn’t matter,” Jacobsen said. “It doesn’t mean what you are doing is correct.”
The appeals court also could exercise its option to refer the case to the state appellate court on the grounds that it involves an interpretation of state law, Jacobsen said. He added such actions are rare, “but I think $68 million is a significant case.”
Jacobsen also doubted the final payout for the county would be close to $68 million.
“I cannot envision this case is going to result one way or another in $68 million,” he added. “Plaintiff lawyers have to understand the money just isn’t there. Realistically, that is just not a judgment that they are going to be really happy with going to war to try and collect the full amount.”
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