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Government's Frivolous, Retaliatory Demand for Critic's Business Records May Violate First Amendment

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Free Speech

Eugene Volokh | 9.24.2021 6:14 PM

From McGee v. Township of Conyngham, decided yesterday by the Third Circuit, in a nonprecedential opinion by Judge Kent Jordan, joined by Judges David Porter and Marjorie Rendell:

John McGee became suspicious that a Conyngham Township Supervisor was syphoning government money into her own pockets, so he requested information from the Township under Pennsylvania's Right-to-Know Law….

McGee is a businessman and landlord who has lived in the Township of Conyngham, Pennsylvania since 2002. In 2015, he became involved in Township politics, attending occasional meetings of the Board of Supervisors and speaking up about his concerns with the Township's housing code. In February of 2017, he grew suspicious of the Township's finances and submitted a Pennsylvania "Right-to-Know Request Form" to the Board, seeking, among other things, time records, payment records, daily schedules, and expense reimbursements made to the Township's Secretary and Supervisor, Linda Tarlecki. Tarlecki had been the Township's Secretary since 2006, prior to becoming a Supervisor. She was responsible for responding to Right-to-Know requests directed to the Township, and she provided McGee a partial response. Later, McGee sent a second request, again seeking Tarlecki's payroll and reimbursement information. McGee had also been asking questions about such records at Township meetings.

After receiving the second request, the Township sent a Right-To-Know request to McGee, seeking tax records for his businesses and receipts for repairs done to his rental properties. Tarlecki testified that she prepared and handed the request to McGee because she "got tired of getting a Right to Know off of him every time I was out of the office." She did not, however, "expect the [requested] documents to come back." The named requesters on the form were "Conyngham Township Authority and Conyngham Township."

When McGee received the Township's request, he did not respond, retain a lawyer, or contact the Township Board of Supervisors.........

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