McMullan v. WOHLGEMUTH

308 A.2d 888, 453 Pa. 147, 1 Media L. Rep. (BNA) 2333, 1973 Pa. LEXIS 669

• Court: Supreme Court of Pennsylvania
• Decided: July 2, 1973
• Docket: Appeal, 77
• Status: Published

Opinions

Ownlon by

Mr. Justice Eoberts,

In early 1971, four reporters of the Philadelphia Inquirer (a metropolitan newspaper owned by the appellee Philadelphia Newspapers, Inc.) requested from Helen Wohlgemuth, the Secretary of the Pennsylvania Department of Public Welfare, and Clarence Jenkins, the Executive Director of the Philadelphia County Board of Public Assistance, permission to examine and inspect departmental lists containing the names and addresses of and amounts received by Philadelphia public assistance recipients. The City Editor of the Inquirer made, at the same time, an identical request, by telegram, to the Governor. Both requests were refused.

Thereafter, on February 14, 1971, appellees filed two actions (one in mandamus, the other in equity) in the Commonwealth Court seeking to gain the requested information. The Commonwealth Court, after conducting a hearing, issued a preliminary injunction enjoining the Department of Public Welfare from withholding from the appellees a list containing the names and addresses of, and amounts received by, two percent of those people receiving public assistance in the City of Philadelphia. McMullan v. Wohlgemuth, 2 Commonwealth Ct. 183 (1971). This Court, after finding no irreparable harm to the Inquirer, reversed that decree. McMullan v. Wohlgemuth, 444 Pa. 563, 281 A. 2d 836 (1971). Neither the mandamus action nor the equity suit has advanced since the date of our decision (October 12, 1971), and neither is involved in the instant appeal

During the pendency of the above two proceedings, the Inquirer, through its Executive Editor, John Mc-Mullan, formally requested of Secretary Wohlgemuth that the desired information be made available. Secretary Wohlgemuth, in a letter dated July 7, 1971, formally refused to permit the Inquirer access to the public assistance information it sought. The Inquirer appealed this denial to the Commonwealth Court, which, on December 9, 1971, reversed the decision of the Department of Public Welfare and ordered the Department to grant access, as sought by the Inquirer. McMullan v. Wohlgemuth, 3 Commonwealth Ct. 574, 284 A. 2d 334 (1971). This Court granted allocatur and issued a supersedeas to preserve the status quo. We now reverse the order of the Commonwealth Court.

We are here called upon to decide whether appellees, either under our common law or under the “Right-To-Know Act” (Act of June 21, 1957, P. L. 390, §§1 et seq., 65 P.S. §§66.1 et seq.), are entitled to have access to the names and addresses of and amounts received by public assistance eligibles in Philadelphia. Appellees argue in the alternative that even if access is denied under the above theories, the First Amendment to the United States Constitution guarantees them a right to the information they seek. Appellees’ contentions, on this record, are without merit.

I

In 1939, the Pennsylvania Legislature enacted a provision in the Welfare Law which provided for the availability of names, addresses and amounts received by recipients of “general assistance.” Act of June 26, 1939, P. L. 1091 at 1093.¹

In 1953, this provision which allowed for the disclosure of “names” was repealed,² and in its place the following statute enacted: “Section 7. Powers and Duties of County Boards of Assistance. Each county board of assistance shall have the power, and its duty shall be: [delete old provision] (o) Upon request by any adult resident of the Commonwealth, to furnish the address and amount of assistance with respect to persons receiving assistance about whom inquiry is made, but such information shall not be used for commercial or political purposesAct of August 22, 1958, P. L. 1361, at 1364-65 (emphasis added).

A reading of this 1953 provision readily reveals the marked differences between it and its repealed 1939 predecessor, supra. The law as it existed in 1953 was specifically changed in three respects: (1) Disclosure was not permitted where the information obtained ivas to be used for “commercial or political” purposes; (2) the requesting party was now required to be an “adult resident of the Commonwealth”, rather than merely a “taxpayer” and; (3) the County Boards of Assistance were no longer permitted to disclose the names of those persons receiving public assistance. The prerequisite was legislatively placed upon the “adult resident” to come forward with the name (or names) of a recipient (or recipients) “about whom inquiry is made.”

In 1967, the welfare laws were recodified,³ and the following sections included in the new Public Welfare Code:

Ҥ404. Regulations for protection of information (a) The department shall have the power to make and enforce regulations:

(1) to protect the names of applicants for and recipients of public assistance from improper publication, and to restrict the use of information furnished to other agencies or persons to purposes connected with the administration of public assistance. Upon request by any adult resident of the Commonwealth, the department may furnish the address and amount of assistance with respect to persons about whom inquiry is made; but, information so obtained shall not be used for commercial or political purposes; and no information shall be furnished regarding any person’s application for, or receipt of, medical assistance for the aged.”

Ҥ425. Furnishing information

Upon request by any adult resident of the Commonwealth, any county board shall furnish the address and amount of assistance with respect to persons receiving assistance about whom inquiry is made, but such information shall not be used for commercial or political purposes.”

Act of June 13, 3967, P. L. 31, art. 4, §404, §425, 62 P.S. §404, §425 (emphasis added).⁴

In supplementing its statutorily conferred regulatory authority, as set out in §404(a)(1), supra, the Department of Public Welfare adopted Regulation 4143.31 (Department of Public Welfare-Public Assistance Manual) :

“4143.31 Request by an Adult Resident of Pennsylvania.

(Does Not Apply to Medical Assistance)

Provided that the information is not to be used for political or commercial purposes, the address and amount of assistance a person is currently receiving are disclosed to any adult resident of Pennsylvania who aslcs for such information about any person.

In releasing such information, the County Office must be reasonably assured that the person is 21 or over and a resident of Pennsylvania; the County Office also takes the following steps:

a. If the inquirer appears in person, the information in the ‘Request’ section of the PA. 163, REQUEST FOR ADDRESS AND/OR AMOUNT OF ASSISTANCE, is filled in, and the person making the request signs the form, before the information is disclosed. The ‘Reply’ section of the form is then filled in.

b. If the request is made by telephone and the inquirer is known to the person receiving the request and the inquirer knows about the restrictions on the use of information, the information is given over the telephone; otherwise the inquirer is advised to either come to the office or to make his request in writing. When information is given over the telephone, the person giving the information prepares a PA. 163 for file, showing the name of the person making the request.

c. If the information is requested by correspondence, the County Office prepares a reply in duplicate, always including in any reply that gives information the following excerpts from the Public Welfare Code:. . .”

“Section 483 Penalties.—‘Any person knowingly violating any of the rules and regulations of the department made in accordance with the Article shall be guilty of a misdemeanor, and, upon conviction thereof, shall be sentenced to pay a fine, not exceeding one hundred dollars ($100), or to undergo imprisonment, not exceeding-six months, or both.’” (emphasis added.)

In addition to Regulation 4143.31, the Department has also adopted Regulation 4142, which, in full conformity with the 1967 statute it implements (§404 (a) (1), supra), forbids disclosure of the “\n\ames of applicants and recipients” of public assistance. See also Regulations 4143 et seq. Department of Public Welfare-Public Assistance Manual.

Interpreting §494 (a) (1), §425, and the regulations which implement §404(a), we must conclude that: (1) the requesting “adult resident” must supply the name(s) of a recipient(s) before the Department of Public Welfare or the County Boards of Assistance are authorized to disclose the recipient’s address and the amount of public assistance received; (2) all requests for information must be made by an “adult resident of the Commonwealth” and; (3) information so obtained may not be used for a “commercial or political” purpose.

The corporate appellee (newspaper) must be denied access to the information it requests since it fails to meet all three of the above statutory requirements. Clearly, no one would seriously suggest that the Philadelphia Newspapers, Inc. is an “adult resident” of Pennsylvania. In the 1953 and 1967 revisions of the Public Welfare Law, the Legislature clearly narrowed the class of those entitled to request information (the addresses and amounts received by public assistance recipients) from “taxpayers” to “adult residents of the Commonwealth.” This classification obviously does not include corporations, such as the appellee here. If the Legislature had intended to include “corporations” in the class eligible to request information, it explicitly could have done so. Despite this plain language, the court below directed that the corporate appellee be furnished information forbidden to it by statute. That court apparently failed to realistically discern that the individual appellees are one and the same as their corporate counterpart.

Although the important informational role of the press cannot be over-emphasized, and although the Inquirer’s goal here may be laudable, appellees have not asserted any non-commercial or non-political use for the public assistance information requested. Thus, we cannot indulge in conjecture to conclude that once obtained, the information would be used solely by the newspaper, its individual appellee-editor, or reporter for non-commercial and non-political purposes. Sections 404(a) (1) and 425, supra, explicitly forbid disclosure under these circumstances.

Finally, and most importantly, the appellee-newspaper, as well as the individual appellees, are foreclosed under §§404(a) (1) and 425, supra, since they have failed to produce the names of recipients “about whom inquiry is made.” A common sense reading of the statutes, and a review of the legislative reforms of the last thirty years, makes it abundantly clear that the Legislature in the 1953 and 1967 public welfare enactments, supra, placed the responsibility on the “adult citizen” to produce the names of those recipients “about whom inquiry is made.”⁵

Appellees, in their initial administrative requests submitted to appellants, in their pleadings and briefs to the court below, and in their briefs on this appeal, have consistently insisted that they be furnished not only the addresses of all recipients in Philadelphia and the amounts received, but also the names of all Philadelphia citizens on public assistance. At no point in the entire proceedings have the appellees, in compliance with §§404(a)(1) and 425, supra, provided appellants with the names of those people they seek to investigate.⁶ Instead, they have merely furnished a Philadelphia telephone directory, containing more than 500,000 listings. See footnote 5, supra.

Accordingly, since the appellees have failed to comply with the mandatory and unambiguous statutory requirements, the information they seek must be denied. The statutory requirements (§§404(a) (1) and 425, supra) mean exactly what they say—“any adult resident of the Commonwealth” can request that the County Boards of Assistance or the Department of Public Welfare furnish “. . . the address and amount of assistance with respect to persons about whom inquiry is made.” These provisions only allow for the disclosure of addresses and amounts received with respect to those “about whom inquiry is made.” This does not mean, as the appellees contend, a list of the names of all people receiving public assistance.

II

Despite the clear mandate of §§404(a) (1) and 425, supra, appellees nonetheless contend that the “Right To Know Act”⁷ entitles them to the information they seek. Appellees have misinterpreted the clear language of the “Right To Know Act”, and particularly the exceptions contained therein, as well as §§404(a) (1) and 425, supra, and the attendant Department of Public Welfare regulations.

The “Right-To-Know Act” gives “any member of the Commonwealth” a statutory right of access to every “public record” of a state agency. A “public record” is defined by the Act as: “Any account, voucher or contract dealing with the receipt or disbursement of funds by an agency or its acquisition, use or disposal of services or of supplies, materials, equipment or other property and any minute, order or decision by an agency fixing the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons . . . .” 65 P.S. §66.1(2) That definition, although appearing to be broad enough to encompass the records sought here, McMullan v. Wohlgemuth, supra, 444 Pa. at 567, 281 A. 2d at 838, is much narrower when read in conjunction with the Act’s four clear exceptions to the “public record” disclosure definition:

“[T]he term ‘Public Records’—

“1 shall not mean any report, communication or other paper, the publication of which would disclose the institution, progress or result of an investigation undertaken by an agency in the performance of its official duties, except those reports filed by agencies pertaining to safety and health in industrial plants;

“2 shall not include any record, document, material, exhibit, pleading, report, memorandum, or other paper, access to or the publication of which is prohibited, restricted or forbidden by statute law or order or decree of court,

“3 [shall not include any record, document, material, exhibit, pleading, report, memorandum or other paper, access to or the publication of which] would operate to the prejudice or impairment of a person’s reputation or personal security,

“4 [shall not include any record, document, material, exhibit, pleading, report, memorandum or other paper, access to or the publication of which] would result in the loss by the Commonwealth or any of its political subdivisions or commissions or State or municipal authorities of Federal funds, excepting therefrom however the record of any conviction for any criminal act. 65 P.S. §66.1(2).” (emphasis added.)

Sections 404(a) (1) and 425 of the Public Welfare Code prohibit the disclosure of names of public assistance recipients. And the sections clearly do not permit the disclosure of addresses or amounts received by recipients where the information obtained is to be used for a “commercial purpose.” Therefore, how can it be said that exception (2) of the “Eight to Know Act” (noted above) does not exempt from public disclosure the information sought by appellees. The simple answer to this rhetorical question is that it cannot be. Sections 404(a) (1) and 425, supra, are “statute law[s]” which prohibit, restrict and forbid “access to” the names of public assistance recipients, and where to be used for a “commercial” purpose, the addresses and amounts received by those receiving public assistance. Accordingly, the applicability of exception (2) of the “Right to Know Act” to the instant situation is manifestly clear and adversely disposés of appellees’ claim.⁸

Appellees also contend they are entitled to the information they seek under the common law of this Commonwealth. Such an assertion must be dismissed. As this Court said in Mooney v. Temple University Board of Trustees, 448 Pa. 424, 429-30, n.10, 292 A. 2d 395, 398, n.10 (1972) : “It is unquestioned that the right to inspect public documents was no broader at common law than it is presently under the statute [“Right to Know Act”, supra]; it may have been more restricted by being limited only to persons with a ‘personal or property interest’ in the matter sought to be disclosed. Wiley v. Woods, 393 Pa. 341, 347-50, 141 A. 2d 844, 848-49 (1958). Therefore, disposition of appellant’s claim under the Inspection and Copying Records Act [“Right to Know Act,” supra] a fortiorari resolves appellants’ claims at common law.” (emphasis added.)

m

In view of the foregoing statutory analysis and the conclusion that the statutory provisions preclude appellees from obtaining the information they seek, we must now consider whether the “Right to Know Act”, supra, and §§404(a) (1) and 425 of the Public Welfare Code, supra, as applied, are unconstitutional, as being violative of appellees’ rights under either the United States Constitution⁹ or that of the Commonwealth of Pennsylvania.¹⁰ In essence, appellees argue that to deny them the names of Philadelphia residents receiving public assistance, is tantamount to an abridgement of the press’ right to obtain “access” to sources of information, a right purportedly guaranteed the press under both federal and state constitutional provisions. That contention, on these facts, must be expressly rejected.

Appellees suggest, and we agree, that this is not a case involving the right of the press to print, publish and distribute information. If it were, the result we reach would be quite different. Cf. New York Times Co. v. United States, 403 U.S. 713, 91A S. Ct. 2140 (1971), and the cases cited therein. Here, no impermissible prior restraint is involved. The sole question presented is whether the First Amendment, made applicable to the states through the Fourteenth Amendment, of the United States Constitution, and art. I, §7 of the Pennsylvania Constitution, guarantee the press the unrestricted right to “gather” news by compelling County Boards and the Department of Public Welfare to furnish appellees with a list of the names of all Philadelphians receiving public assistance. In our view, neither constitutional provision so provides.

It appears clear that this Court has decided that no such absolute right to gather news (i.e., compel the furnishing of information), statutorily protected from disclosure, exists under Art. I, §7 of the Pennsylvania Constitution. Taylor and Selby Appeals, 412 Pa. 32, 193 A. 2d 181 (1963). Although the Pennsylvania Legislature has wisely created an absolute statutory right of a newsman to preserve the confidentiality of his sources of information, Act of June 25,1937, P. L. 2123, §1, 28 P.S. §330, Selby, supra, explicitly stated that but for the statutory provision, the Commonwealth could constitutionally compel a newsman to divulge his sources. See also Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646 (1972). Implicitly, this Court in Selby, expressed its view that art. I, §7, of the Pennsylvania Constitution goes no further than its federal counterpart in guaranteeing that the press be free to print, publish and distribute.

No United States Supreme Court decisions have been found which directly hold that the First Amendment embodies the right of the press to “gather” news. So, too, there is no authority whatever for judicially compelling the disclosure to the press of material, statutorily restricted.

Nevertheless, it is perhaps logical to assume that such a right to gather news “of some dimensions must exist” if the First Amendment is to have realistic vitality. As Mr. Justice Stewart recently stated in his dissenting opinion in Bramburg, supra: “A corollary of the right to publish must be the right to gather news.

. . . News must not unnecessarily be cut off at its source, for without freedom to acquire information the right to publish would be impermissibly compromised. Accordingly, a right to gather news, of some dimensions, must exist.” 408 U.S. at 727, 728, 92 S. Ct. at 2672-73 (emphasis added) (citation omitted). Although we agree that such a right, emanating from the First Amendment, does exist, this right, as all other First Amendment rights, is not absolute. See, e.g., Selby, supra at 39, 193 A. 2d at 184, and the cases cited therein. Here, appellees have no right to compel the disclosure of names explicitly restricted by statute.

In this instance, appellees have advanced no persuasive reasons why the right of the press should be given wider boundaries than that of the public it seeks to inform. As the Court noted in Bramburg, supra: . . [T]he First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally. Zemel v. Rusk, 381 U.S. 1, 16-17 (1965); New York Times v. United States, 4.03 U.S. 713, 728-30 (1971) (Stewart, J., concurring); Tribune Review Publishing Co. v. Thomas, 254 F. 2d 883, 885 (CA3 1958); In the Matter of United Press Assns. v. Valente, 308 N.Y. 71, 77, 123 N.E 2d 777, 778 (1954).” 408 U.S. at 684, 92 S. Ct. at 2657. “The right to speak and publish does not carry with it the unrestrained right to gather information Zemel, supra at 17, 85 S. Ct. at 1281 (emphasis added).¹¹ See also Quad-City Community News Service, Inc. v. Jebens, 334 F. Supp. 8 (S.D. Iowa 1971).

The holding of the Third Circuit in Tribune Review Publishing Co. v. Thomas, supra, is especially relevant here: “Realizing that we are not dealing with freedom of expression at all but with rules having to do with gaining access to information on matters of public interest, can it be argued that here there is some constitutional right for everybody not to be interfered with in finding out things about everybody else? We suppose it would not be contended that a newspaper reporter or any other citizen could insist upon entering another’s land without permission to find out something he wanted to know. In the same way merely because someone’s private letters might be interesting as gossip or as models of English composition it would hardly be argued that one could open another’s desk and read through what he finds there. Could an interested observer insist on the constitutional right to take motion pictures of a private family in and about its household contrary to that family’s wishes? We think that this question of getting at what one wants to know, either to inform the public or to satisfy one’s individual curiosity is a far cry from the type of freedom of expression, comment, criticism so fully protected by the first and fourteenth amendments of the Constitution.” 254 F. 2d at 885 (emphasis added).

Here, the Commonwealth’s interest in protecting the privacy of those it aids through public assistance is paramount and compelling. The Legislature^ by enacting §§404(a) (1) and 425 of the Public Welfare Code, supra, has clearly set forth its intent that maintaining the privacy of the recipient is a crucial element in its quest to preserve “family life” and “encourage self-respect, self-dependency and the desire to be a good citizen and useful to society.” Act of June 13, 1967, P. L. 31, art. 4, §401, 62 P.S. §401. Such a preponderant interest unquestionably outweighs any non-absolute right of the press to “gather news,” by compelling the material it seeks. Here, as in Tribune Review Publishing Co. v. Thomas, supra, “we are not dealing with freedom of expression at all” but with appellees’ request to have furnished to them a list of all Philadelphia public assistance eligibles.

The statutory ban against disclosing the names of public assistance recipients is a clear recognition and directive by the Legislature that the privacy of the recipient is a fundamental need worthy of protection. This Court is bound to give great deference to this sound legislative judgment. The statutory limitation imposed on appellees’ asserted First Amendment right to compel the disclosure of those receiving assistance is no greater than necessary to protect the substantial governmental and individual interests involved. Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790 (1963); NAACP v. Button, 371 U.S. 415, 83 S. Ct. 328 (1963); Shelton v. Tucker, 364 U.S. 479, 81 S. Ct. 247 (1960). Accordingly, in the face of this legislative directive, appellees cannot prevail.¹² Again, we emphasize that this Court is not here concerned with the right of a newspaper to publish information which it has already acquired. Cf. New York Times Co. v. United States, supra. What appellees here seek is the compelled disclosure of names of public assistance recipients, statutorily made nou-available.

Having determined appellees’ arguments adversely to them, we need not consider appellants’ contention that the disclosure of the names and addresses of and amounts received by public assistance recipients would violate the constitutional right of privacy guaranteed these needy citizens. The Legislature in excluding the names of public assistance recipients from public disclosure wisely avoided this constitutional challenge. See §§404(a) (1) and 425 of the Public Welfare Code, supra.

The order of the Commonwealth Court is reversed.

Mr. Justice Eagen concurs in the result.

1 “Section 7. Powers and Duties of County Boards of Assistance. Each county board of assistance shall have the power and its duty shall be: (o) To make available for inspection and examination during office hours, to any taxpayer, in such manner as the county board of assistance may prescribe, the names, addresses, and amount of assistance granted to all persons then receiving general assistance.”

2 This action was apparently taken as a response to the “Tenner Amendment”, which made clear the congressional intent that public assistance funds would not be withheld from the States, solely because the states choose to make public certain information regarding welfare disbursements. Cf. Indiana v. Ewing, 99 F. Supp. 734 (D.D.C. 1951). “No state or any agency or political subdivision thereof shall be deprived of any grant-in-aid or other payment to which it otherwise is or has become entitled pursuant to title 1, IV, X, or XIV of the Social Security Act, as amended, by reason of the enactment or enforcement by such State of any legislation prescribing any conditions under which public access may be had to records of the disbursement of any such funds or payments within such State, if such legislation prohibits the use of any list or names obtained through such access to such records for commercial or political purposes.” Tenner Amendment, Act of October 20, 3951, 0.521, Title VI, §618, 65 Stat. 569, 42 U.S.C. §302 (emphasis added).

3 Act of June 13, 1967, P. L. 31, art. 4, §§401 et seq., 62 P.S. §§401 et seq.

4 These two sections at first appear to be inconsistent, inasmuch as §404(a)(l) is diesretionary in phraseology (“may”) and §425 mandatory (“shall”). However, applying §§32 and 63 of the Statutory Construction Act, Act of May 28, 1937, P. L. 1019, art. IV, §§62 and 63, 46 P.S. §§562 and 563, which require that statutes in pari materia be construed together as one law, and if possible, that effect be given to both, it is clear that addresses and amounts received by public assistance recipients shall not be disclosed by the County Boards of Assistance unless and until the Department of Public Welfare permits it.

5 Here, the appellees argue that this requirement was met when the Department of Public Welfare was given a Philadelphia telephone directory by the appellees, and requested to furnish the appellees with the names, addresses and amounts received by all those listed in the directory who were receiving public assistance funds. (See appellees’ brief at pp. 23-24, n.12.) By submitting a telephone directory, the appellees have attempted to do indirectly that which is explicitly prohibited from being done directly—they have demanded the names of all public assistance recipients (who have a listed telephone) within the City of Philadelphia. Such an all inclusive and unreasonable act, encompassing more than 500,000 Philadelphia telephone subscribers, can hardly be conceived of as being in compliance with the statutes.

If it were concluded otherwise, all who are in possession of a telephone directory or other similar compilation, including voter lists, could compel the Department of Public Welfare and the County Boards of Assistance to research the directory’s listings, and dissect from them those people who receive public assistance. (There are more than 4,500,000 telephone subscribers in the Commonwealth, and more than 5,000,000 registered voters.) This task, beyond question, would be enormous, and in fact, could well transform public welfare services into informational disbursement offices, with the attending huge expenditures of time and money.

Were appellees’ view to prevail, these listings could encompass the entire Commonwealth. Surely, the funds and time required to comply with such potentially unlimited and extensive requests would affect adversely the quality and costs of public assistance programs in Pennsylvania.

6 See, e.g., the statement of facts and the issues presented, as framed by the Commonwealth Court, in this case below, 3 Pa. Commonwealth Ct. 574, 575, 284 A. 2d 334 (1971), and in McMullan, et al v. Wohlgemuth, et al., 2 Pa. Commonwealth Ct. 183 (1971). In its brief submitted here, the appellees urge this Court to affirm the order of the Commonwealth Court allowing appellees the right “. . . to inspect Welfare Department lists containing the names and addresses of recipients of public assistance and the amount of assistance each receives.” (emphasis added.)

7 Act of June 21, 1957, P. L. 390, §§1 et seq., 65 P.S. §§66.1 et

8 Although exception (2) of the “Right to Know Act” clearly exempts the information sought by appellees, exceptions (1) (investigative exception) and (3) (reputation and personal security exception) are equally persuasive in foreclosing appellees’ contentions. However, since the language of exception (2) so clearly controls here, further discussion of exceptions (1) and (3) is unnecessary.

9 U.S. Const, Amend. 1

•‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press. . . .”

10 Pennsylvania Const., Art. 1, sec. 7.

“The printing press shall be free to every person who may undertake to examine the proceedings of the Legislature or any branch of government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty. . .

11 “Despite the fact that news gathering may be hampered, the press is regularly excluded from grand jury proceedings, our own conferences, the meetings of other official bodies gathered in executive sessions, and the meetings of private organizations. Newsmen have no constitutional right of access to the scenes of crime or disaster when the general public is excluded, and they may be prohibited from attending or publishing information about trials if such restrictions are necessary to assure a defendant a fair trial before an impartial tribunal. In Sheppard v. Maxwell, 384 U.S. 333 (1966), for example, the Court reversed a state court conviction where the trial court failed to adopt ‘stricter rules governing the use of the courtroom by newsmen as Sheppard’s counsel requested,’ neglected to insulate witnesses from the press, and made no ‘effort to control the release of leads, information, and gossip to the press by police officers, witnesses, and the counsel for both sides.’ Id., at 358, 359. ‘[T]he trial court might well have proscribed extrajudicial statements by any lawyer, party, witness, or court official which divulged prejudicial matters.’ Id., at 361. See also Estes v. Texas, 381 U.S. 532, 539-540 (1965); Rideau v. Louisiana, 373 U.S. 723, 726 (1963).” Branzburg v. Hayes, 408 U.S. at 684, 685, 92 S. Ct. at 2658 (1972).

12 Appellees cite, in their brief, The Washington Post Co. v. Kleindienst, C.A. No. 467-72 (April 5, 1072), an unpublished opinion by the United States District Court for the District of Columbia, for the proposition that the press does have a qualified constitutional right to gather news. Although we agree with that assertion, a careful reading of the district court’s opinion does not support appellees’ argument here. In Kleindienst, the court was dealing with a situation where both the press and the individual to he interviewed desired disclosure. Such are not the facts of the present controversy. As the court in Kleinclienst succinctly stated: “There is, of course, an absolute right of privacy which the press cannot invade. An individual may refuse to be interviewd. Those who wish to consult or meet in private for the day-to-day conduct of public or business affairs may, in furtherance of their own common right to privacy, exclude the media. These commonly accepted situations are, however, obviously quite distinct from the special circumstances presented by this particular controversy. Here the Bureau has not denied the press access to its own personnel. Bather, it has imposed a bar on persons placed in its care by the courts who may wish to talk with the press and are willing to be interviewed.” (emphasis added.)