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(This article first appeared in Broad + Liberty)

Editor’s note: The author of this article, Todd Shepherd, is not a neutral observer in the events described below. As a journalist with Broad + Liberty, he was the requester and lead plaintiff in the two Right-to-Know Law cases discussed in this story.

Over the last two months, Broad + Liberty has secured two important court rulings in its pursuit of documents related to the 2023 Mike Vereb scandal — a scandal that received additional scrutiny from national media as Gov. Josh Shapiro was one of two finalists to become the vice presidential running mate of Democratic nominee Kamala Harris in the summer of 2024.

The pair of rulings weren’t entirely in the outlet’s favor, but the portions that would be considered wins could end up delivering more transparency to reporters as well as members of the public who avail themselves of the commonwealth’s Right to Know Law.

In March of 2023, a young female deputy in the Office of Legislative Affairs abruptly resigned just one month into the job. She later filed complaints against Vereb, Shapiro’s secretary of the Office of Legislative Affairs. Vereb, a Montgomery County Republican, had held the same position with Shapiro at the Attorney General’s office as well.

In an earlier part of the court battle, Broad + Liberty forced the concession from the governor’s office that it had deleted the email account of Vereb’s female accuser. Although the governor has personally said his office follows all records-retention guidelines, Shapiro’s office has still never disclosed when that email account was deleted.

Although the deputy’s complaint was informally lodged in March and then more formally in late May or early June, Vereb didn’t resign until late September of that year.

This reporter has filed over twenty Right to Know requests combined at the governor’s office and the Office of Administration — essentially a kind of business- and HR-support office for the governor’s main office.

Last year, Broad + Liberty elevated two of those cases to Commonwealth Court.

In the first ruling from May, the RTK at issue sought emails from Vereb’s account for a one-month period that included the week the deputy quit. The request did not specify a subject matter or specific keywords.

That last aspect is important because courts have ruled that requesters who seek emails generally need to name the government activity they wish to examine. They do not have to provide this, however, if their timeframe is reasonably short — usually interpreted as a month or less.

The governor’s office compared the request to one in which a court “emphasized the fact that the request included the Acting Secretary of Health, as well as some of the most senior members of the Department of Health, and that the request would inevitably involve larger quantities of confidential and sensitive information and deliberation than a request of a similar scope” aimed at a lower ranking official.

Commonwealth Court Judge Michael Wojcik , however, wasn’t inclined to let this argument stand.

“If nothing else, we must remain vigilant to ensure that the objectives of the RTK Law are met. Access to information concerning the activities of the government does not hinge on the identity of the individual from whom records are sought,” Wojcik wrote.

“The Governor and other individuals in the Office cannot avoid a RTK Law request simply because they are high-ranking officials who transact large amounts of business on behalf of the citizens of the Commonwealth. Simply stated, the Governor and the employees in the Office stand in the same shoes as any other government official who is the subject of a RTK Law request.”

In the June ruling, the judge ruled that Shapiro’s office had improperly invoked the “deliberative process privilege” when trying to shield some emails from disclosure.

The “deliberative process privilege” shields records that are predecisional and deliberative, as a way to “encourage open, frank discussions on matters of policy,” according to the Reporter’s Committee for Freedom of the Press.

But in the Broad + Liberty request, Judge Wojcik analyzed many of the emails and determined the governor’s office had been overly generous in its assertion of the privilege.

Speaking with regard to a named set of emails, Wojcik said, “Our review of the documents reveals that they are related to the processing of travel reimbursements and are not reflective of a particularized deliberative process. In this regard, the documents do not reflect that the Office was carrying out deliberations of law or policymaking.”

The emails Wojcik referenced, won’t necessarily be turned over immediately, however, if at all. The judge ordered the Office of Open Records (OOR) to reexamine the emails in light of the other exemptions the governor’s office also applied to the same set of documents.

Still, both rulings have already impacted other Right to Know appeals. As a consequence of the most recent ruling, the OOR has now interrupted more than one RTK appeal this reporter had underway in order to say it would be reassessing “privilege” claims in light of the judge’s decision.

Manuel Bonder, spokesman for the Shapiro administration, called the idea that the rulings were “wins” for Broad + Liberty a “bad faith interpretation” and “another baseless attack that is completely divorced from the reality of the Court’s decision.”

“Notably, out of dozens of withheld records, the court only identified 3 that were not exempt.  The court’s finding that you were entitled to only three records out of the voluminous entries only further supports the office’s steadfast dedication to transparency and propriety,” Bonder said.

Bonder was also keen to point out that the court had dismissed an argument by Broad + Liberty in which this outlet argued that the governor’s office could not invoke an exemption for documents related to an official investigation — even if the investigation is noncriminal. Broad + Liberty argued that the investigation, to the extent there was one, was conducted by the Pennsylvania Human Relations Commission, and only after the accuser filed an official complaint. As a result, the governor’s office could not be shielded, the attorneys argued. Wojcik dismissed that argument and called it “tortured reasoning.”

Melissa Melewsky, media-law counsel for the Pennsylvania NewsMedia Association, says the court rulings underscore a crucial point that too often gets overlooked in Pennsylvania’s public records battles: agencies bear the burden of proving why a record should be withheld — and courts are increasingly insisting that burden must be met.

“Agencies cannot rely on boilerplate assertions or conclusory affidavits to support denials; detailed evidence is required,” Melewsky said. “There are almost no evidentiary hearings in the RTKL context, and that puts the public at a distinct disadvantage in the appeal process and requires agency affidavits supporting denial to be robust and subject to detailed review by the OOR and courts. Anything less allows agencies to hide public information without justification.”

“The holdings illustrate these principles in action and serve as a reminder to agencies, the OOR, courts, and requesters that an affidavit is not the final word on access, and anything less than detailed, meaningful evidence will not meet the burden of proof,” Melewsky concluded.

Melewsky’s concerns were identical to the subject of a recent house editorial from the Pittsburgh Post-Gazette, titled, “Pennsylvania’s Right to Know Law is too easily circumvented by the government.”

“Government officials can deny RTK requests simply by signing an affidavit claiming the documents aren’t subject to the law [because of privilege] — and requesters, whether media or private citizens, can do almost nothing to change that,” the board continued.

“[G]overnment officials can make a sworn statement affirming that documents meet one of the dozens of exceptions to public records in the RTKL, or that the documents don’t exist at all, and that’s the end of it,” the paper went on to say. “Requesters can’t easily produce evidence of bad faith because they have no right to a hearing — this is implied in the RTKL itself, as interpreted by the courts — and therefore no forum in which they can present contrary evidence.”

Broad + Liberty will likely win access to some of the documents Shapiro’s office labeled as “privileged” simply because it took the matter to court — something few requesters have the means to do.

(This article first appeared in Broad + Liberty)

A week’s worth of emails from a former Shapiro administration deputy cabinet secretary no longer exist.

That’s what an attorney conceded in court last month as he represented Gov. Josh Shapiro’s attempt to suppress Broad + Liberty’s legal effort to obtain more documents on the biggest scandal Shapiro has confronted in his first term. The employee in question, a young woman who claimed she was sexually harassed by a top Shapiro aide in 2023, no longer works for the commonwealth.

The revelation made in court on February 12th raises the specter that the emails were purposefully deleted because they could shed new light on the scandal. The government’s lawyer seemed to suggest, instead, that they were merely deleted for matters of good digital hygiene.

But government regulations indicate the emails should have been preserved a minimum of three years, if not longer. In this case, however, the emails were deleted substantially sooner.

In September 2023, Shapiro’s director of legislative affairs, Mike Vereb, resigned because one of his deputies had accused him of workplace sexual harassment in February and March of that year, the very first weeks of the Shapiro administration.

Although the young female deputy felt so pressured she left her position in the first week of March, Vereb stayed on for another six months until September. Female Republican legislators — but few Democrats — asked how Vereb, who had also been a top aide in Shapiro’s attorney general office, had managed to stay in his post for months despite the administration spending $295,000 in taxpayer dollars to settle the sexual harassment complaint.

More than a week after Vereb’s resignation, Shapiro told reporters that the people of Pennsylvania could trust the process, and referenced Vereb’s departure as an obvious good thing.

“I can tell you the individual [Vereb] you cited in your question no longer works in my administration. I’ll also tell you — and I want to just speak generally on this, not with regards to any specifics here, and I appreciate your understanding of why I can’t comment individually — our administration is led by two women, strong women, my chief of staff and general counsel. And we work every day to make sure that we have a healthy, safe, professional work environment for all of our employees.

“And I want everyone to know who works in state government or anyone observing state government, that should anyone feel that we’re not meeting those standards, that we have an independent, robust, professional process to allow people to come forward safely and have their concerns heard. That’s something I’m committed to, that’s something the leaders in our administration are committed to, and that is something we adhere to in every case,” Shapiro concluded (video, minute 37:30).

Seeking to better understand how Vereb stayed on for months after the accusations, and also to test Shapiro’s theory about the “independent, robust, professional process,” Broad + Liberty filed extensive Right to Know (RTK) requests with the governor’s office in December of 2023 and then March of 2024.

When the administration’s document production seemed incomplete, both RTK requests were appealed to the Office of Open Records, with both appeals lasting months. Later, as Shapiro’s administration then began to turn over additional documents due to the OOR rulings, there appeared to be noticeable gaps in the document production.

In the most standout example, this reporter requested all inbound and outbound emails for the deputy for “March 2, 2023, to and including March 8, 2023,” — essentially her last week at work. Such documents might have revealed if the deputy began to reach out to others in the office for help, or communicated her distress in other ways.

The governor’s office, however, did not produce even a single email communication for that time period. For these reasons, Broad + Liberty elevated the matter to Commonwealth Court.

At oral arguments in February, Broad + Liberty’s attorney, Thomas Breth, told Commonwealth Court Judge Michael H. Wojcik, “The response that we have in this affidavit [from Shapiro’s office] is during that time period, the deputy secretary of legislative affairs received no emails and sent no emails.
“Your Honor, on its face – I don’t – I don’t want to insult, but on its face, that’s really, really difficult to – to fathom that scenario.”

Moments later, the governor’s attorney, Thomas Howell, said the idea that there were no emails for that time was wrong.

“I also take some exception to the concept that the affirmation is attempting to establish that no emails were sent for this one- or two-week period. That’s not what the affirmation says,” Howell told Judge Wojcik.

“What the affirmation says is that the Office of [the] Governor no longer possesses the records of this employee who was – who left commonwealth employment I think about a year to a year and a half before this Right to Know Law request came in,” Howell said.

“That, frankly, should not be surprising that an account of a departed employee would be disposed of in accordance with the records retention schedules. Those retention schedules are public, and they establish that, you know, your general emails are deleted as soon as they’re no longer necessary,” Howell added.

The governor’s office did not respond to a detailed request for comment that asked for the records retention schedule.

Broad + Liberty’s first Right to Know request was in December of 2023, only nine months after the deputy departed her position. The second request, which included the line seeking one week’s worth of emails from the deputy, was filed on March 28, 2024, was filed approximately one year and three weeks after she quit.

This outlet on Monday filed a petition seeking sanctions against the governor’s office in the belief that the administration did not, in fact, adhere to the document retention regulations.

Many regard the Vereb scandal as the most important and threatening development thus far to Shapiro’s reputation, and it quickly became a focal point for national political reporters last summer when Shapiro was considered to be one of two finalists to be the vice-presidential running mate to Kamala Harris’ nascent presidential campaign.

For example, as the “Veepstakes” speculation was reaching its peak last July, a political reporter for the New York Times filed a Right to Know with the governor’s office that was a duplicate of the original Right to Know filed by Broad + Liberty in December of 2023, according to the RTK log from the governor’s office.

Just days before Kamala Harris would ultimately select Minnesota Governor Tim Walz as her running mate, Broad + Liberty published an article casting doubt on the thoroughness of any internal investigation into the allegations by Shapiro’s office.

That article used a log obtained in the RTK appeal process which outlined various emails that the governor’s office was arguing should still be withheld. On March 14, roughly one week after the deputy quit, Christina Palmer, Shapiro’s senior legal analyst in the Office of General Counsel sent a message to Vereb described as “email forwarding legal advice.”

Two attachments to that email were described as “conveying legal advice/instruction.”

This suggested the possibility that Shapiro’s office was providing legal advice to Vereb while at the same time supposedly investigating him — which, if true, would present a clear conflict of interest. At the time, Shapiro’s spokesman, Manuel Bonder, tried to refute that idea by saying the office of general counsel “represents the Office of the Governor and executive agencies, and not individual officials in their personal capacities.”

In that article, Senate President Pro Tem Kim Ward (Westmoreland), who also is the first woman to lead the Pennsylvania Senate, denounced Shapiro’s handling of every aspect of the scandal.

“It is becoming apparent that any attention Shapiro or his staff gave this matter was protective to cover their office. Shapiro has had every opportunity to step up and do the right thing and he has failed every time,” she told Broad + Liberty in August of last year.

In the same press conference referenced earlier, Shapiro shrugged off criticisms from Ward by saying, “consider the source when it comes to the president pro tem” of the state Senate.

The notion of a workplace sexual harassment investigation also resurfaced in the courtroom oral arguments.

Upon hearing the idea that the emails had not been preserved, Breth was incredulous.

“[T]here was an active investigation to allegations of sexual harassment,” Breth said. “She leaves the employment of the Office of the Governor March 6th, March 7th, somewhere in that time frame, your Honor. There’s a subsequent settlement agreement that comes — becomes public in October of that year. And less than a year — from the time she left the employment, the Office of the Governor’s position is they — they — I don’t want to say destroyed –  they did not preserve emails[.]”

“I’d also assert that I’m assuming if there were an investigation through the Pennsylvania Human Relations Commission that had the jurisdiction of this matter, they would have been provided access and digital copies of all of the emails.This individual was only employed for a relatively short period of time — months. So to accumulate all of her sent and received email, I would assume that that was preserved as part of the investigation,” Breth added.

Using a retention schedule promulgated in 2016 but apparently still in effect, Broad + Liberty believes most of the deputy’s emails would fall under two categories (G001.001, and G001.006) which would have retention requirements of eight years and three years, respectively. That retention schedule was still available on a state website at least as late as March of this year, according to a snapshot from the Internet Archive.

Additionally, a 2015 Commonwealth Court ruling held that government agencies have a duty to search their computer servers for deleted emails.

“When an individual deletes an email from his or her email account, as many people to their chagrin have found out, that does not mean that the email is necessarily deleted,” the ruling said. “Those emails remain on the mail server until they are deleted in accordance with a retention schedule established by the Department. Consequently, to establish that the email records do not exist, the Department must also establish that they no longer exist on the mail server.”

In looking at the retention issue, the only piece of the picture lacking then is the “Agency File Plan,” which, if it existed, would have given employees of an agency guidance on things such as how often an employee should cull documents for preservation. Or, the file plan might give instructions on who is responsible for preserving the documents of an employee who has left the department.

“The record retention schedules are only as good as their implementation within the agencies, and the Agency File Plan is really where the rubber meets the road, so to speak,” said Melissa Melewsky, media-law counsel for the Pennsylvania Newsmedia Association. “If there is no file plan, or there’s little training about it or oversight of employee compliance with it, the record retention schedules could be rendered ineffective,” she said.

That plan would also have been among the documents Broad + Liberty sought to obtain when reaching out to the governor’s office for comment, but the request was ignored.

The Shapiro administration’s response to Broad + Liberty’s first Right to Know included an “agency affirmation” from its open-records officer that said, “In response to the request, I reviewed the records, operations and programs of the Office and conducted a search of the Office’s records for emails…” But the affirmation did not make any mention of a search of the office’s computer servers, an issue that came to dominate much of the oral argument last month.

“If they’re conducting a good faith search to determine whether there are any sent or received emails from this individual during that time period, some — I’m assuming…the agency open records officer doesn’t have the authority to just go in and search the, the server. [Shapiro’s open records lawyer] certainly doesn’t indicate that in his affirmation,” Breth told the judge.

Rep. Abby Major, who has been a confidant to the deputy who resigned, and who herself was also the subject of sexual harassment at the capitol, excoriated the idea of missing emails.

“The idea that there are zero emails on the server for an employee is preposterous. Even after someone’s account is removed, there are still records of emails that were sent and received in other inboxes,” Major said.

“Also, why would they delete her account and any record of her employment while in the middle of a legal case with her? It suggests to me that they were potentially interested in hiding some evidence or proof of the sexual harassment that could have been found in her email.”

The Vereb scandal has witnessed two major developments since it originated, both coming during the 2024 Veepstakes.

In August 2024, ABC News reported that a woman who works for a nonprofit organization told lawmakers that she had been verbally attacked by Vereb years before when Shapiro was still at the attorney general’s office.

“…Vereb, allegedly invoked Shapiro’s name on the call, telling the woman that ‘by the time he and Josh were done with me, I would be worse than nothing,’ said the woman, who requested that her name not be published, in an interview with ABC News,” the report said.

At about the same time, the New York Times reported on the Vereb issue: “Shapiro Faces Scrutiny Over Sexual Harassment Complaint Against Aide[.]”

“In a statement…Manuel Bonder, a spokesman for Mr. Shapiro, said the governor ‘was not aware of the complaint or investigation until months after the complaint was filed.’ Mr. Shapiro should have been notified of the allegations sooner,” Bonder told the Times.

That update drew swift condemnation.

Chuck Pascal, a western Pennsylvania Democrat who also was the attorney for the deputy secretary and victim, ripped the notion that Shapiro didn’t know early on.

“Either 1) he has no idea what goes on in his own inner circle, and office suite; or, 2) his top staff, including his Chief of Staff, keeps him in a “good news only” bubble for whatever reason; or 3) this statement has ZERO credibility,” Pascal posted to X.

At the time, Broad + Liberty asked Bonder to give more detail on when the governor was actually informed. He did not respond to that request for comment.

The National Women’s Defense League, which drew headlines during the VP search, blasted the revelations of the missing emails.

“Today there is still no adequate detailing that has been shared by Gov. Shapiro of the investigation of the complaint resulting in a nearly $300,000 settlement, but what we do know is deeply problematic: First, Gov. Shapiro’s office said they had robust procedures in place and had done a thorough investigation. Ten months later, in August of 2024, they said that Gov. Shapiro actually didn’t know about the complaint against his top aide and direct report until months after. Additionally, an earlier Right to Know request revealed serious conflict of interest and bias, including possibly providing legal counsel to the harasser’s attorney and the hiring of multiple sexual harassers,” said league cofounder Sarah Higginbotham.

“This is unacceptable. All state legislatures, including Governors’ offices, should be operating under a publicly available sexual harassment policy – one that is ideally codified in state statute that outlines prevention efforts, investigation process, and ongoing evaluation. Critically, the policy must also seek to eliminate political bias in the process. What remains unclear in Pennsylvania is what that process has been in the Governor’s office and in the state legislature. What is absolutely clear is that whatever they’re doing — or not doing — isn’t good enough.

“Gov. Shapiro has an opportunity to evaluate the failings of their procedure, be candid with the public, and create a better policy.”