DocketNumber： No. 85-5132
Judges： Adams, Garth, Stapleton
Filed Date： 7/21/1986
Status： Precedential
Modified Date： 11/4/2024
OPINION OF THE COURT
Capital Cities Media, Inc. and Robert Scheier, the publisher and Assistant City Editor of a Wilkes-Barre newspaper, the Times Leader, appeal from an order of the district court denying their motion for a preliminary injunction and dismissing their complaint, 609 F.Supp. 494. Defendants are the Pennsylvania Department of Environmental Resources and various of its officials. Appellants (“Times Leader”) contend that appellees (“D.E.R.” or “Department”) denied them access to records in the sole possession of D.E.R., in violation of Times Leader’s First Amendment and state law “right to know”. Times Leader further contends that the Department’s practices with respect to the production and withholding of its records deprives Times Leader of equal protection of the law.
The district court dismissed the complaint for failure to state a claim under the First Amendment and Equal Protection Clause, and held that, under Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), the Eleventh Amendment barred the court from considering the state law basis for Times Leader’s claim of access to the records.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review is plenary. We assume, as we must, that Times Leader will be able to prove the facts which it alleges in its amended complaint. Moreover, because the district court treated an affidavit filed by Times Leader as a supplement to its complaint, we do likewise and assume the truth of the allegations contained therein for purposes of this appeal.
I. BACKGROUND
In December 1983, a major northeast Pennsylvania supplier of drinking water, Pennsylvania Gas & Water Company, placed 250,000 customers on water use restrictions after an outbreak of giardiasis, an intestinal illness caused by the contamination of drinking water by giardia cysts. Over four hundred consumers contracted the illness. D.E.R. is responsible for enforcing various environmental laws and regulations designed to protect the integrity of the public water supplies.
Times Leader investigated the causes of the giardiasis outbreak, including D.E.R.’s possible culpability, and published some four hundred articles and opinion pieces dealing with this incident, approximately one fifth of which have focused on the D.E.R. and the individual defendants in this case. Some of these articles and opinion pieces raised questions of whether political influence or other improper considerations led D.E.R. selectively to enforce its environmental mandate. The articles also examined the enforcement strategy of D.E.R. and its predecessor agencies with regard to sewage discharge problems of Roaring Brook Township and Spring Brook Town
Pursuant to its investigation, Times Leader submitted a written request to D.E.R. for access to documents, including:
Records identifying the 80 to 85 known sewage violators in Spring Brook Twp. Records, including dates of surveys made to identify the sewage violators. Correspondence between DER and Spring Brook Twp. officials during the past 10 years.
Roaring Brook Estates — permits issued and correspondence concerning the sewage problems there.
Elmbrook Development — permits issued and correspondence concerning the sewage problems there. Correspondence between DER and Roaring Brook Twp. officials during the past 10 years.
Appendix at 31 (A31).
On April 18, 1984, and for several days thereafter, Times Leader inspected a substantial amount of materials provided by D.E.R. at the Department’s Wilkes-Barre office. During that inspection, D.E.R. officials informed Times Leader that certain documents had been withheld from the inspection, apparently because
Department policy statewide allows for review of all files at Regional Offices and in Harrisburg with the following exceptions:
1. Interoffice memorandum.
2. Documents relating to attorney/client relationships.
3. Citizen complaints.
A33.
According to Times Leader, the materials it inspected included a substantial number of documents which fell into these excepted categories. Moreover, D.E.R. has been unable to provide Times Leader with a copy of this policy. Indeed, an Assistant Counsel for D.E.R. informed Times Leader that there was in fact no formal statewide policy on public access to information, and that each regional D.E.R. office generally could set its own standard.
At the request of Times Leader, D.E.R. verbally provided a more complete description of the withheld documents. The documents included citizen complaints (six to twelve documents), attorney-client communications (three to four documents), memoranda generated by technical personnel that discuss enforcement strategy and options (approximately six documents); and memoranda generated by technical personnel discussing the results of D.E.R.’s investigation of the giardiasis or sewer problems (undisclosed number of documents). The bulk of the documents fall into the last category.
The Department also provided Times Leader with a copy of its “Public Information General Policy and Guidelines.” That document states that “All citizens shall be provided access to Departmental records and documents,” with the following exceptions:
1. 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 duties;
2. Any item which is prohibited, restricted or forbidden by statute or order of court, or which would operate to the prejudice or impairment of the person’s reputation or personal security;
3. Any item which would result in the loss by the Commonwealth or any political subdivision thereof, of federal funds.
A34.
II. THE FIRST AMENDMENT
The issue posed by Times Leader is whether the First and Fourteenth Amend
There is, of course, no doubt about the value to the Republic of an informed electorate. Nor can there be doubt that a core purpose of the free speech and press clause is to promote the circulation of information and ideas necessary to make government by the people a workable reality. At the same time, neither Times Leader nor any other commentator has suggested that it is necessary, desirable, or even possible to provide the citizenry with access to all of the information in the possession of their governments. As a result, the underlying issue which must be faced here is not whether it is desirable to have an informed electorate, but rather, who is to decide which government-held information must be made available to the public and by what criteria such decisions will be made. If a right of access were implicit in the First Amendment, as Times Leader urges, this task would be assigned to the judiciary and the courts would be required to fashion a constitutional freedom of information act.
The First Amendment, however, seeks to promote the ideal of an informed electorate by barring government interference with the flow of information and ideas to the public. The founding fathers intended affirmative rights of access to government-held information, other than those expressly conferred by the Constitution, to depend upon political decisions made by the people and their elected representatives. This conclusion finds support in the text of the First Amendment, the historical gloss on that text, and the First Amendment case-law.
A.
The First Amendment provides that “Congress ... shall make no law ... abridging the freedom of speech, or of the press.” The Fourteenth Amendment extends this preclusion to actions by the states. This means that, with a few, carefully crafted exceptions, the government can neither interfere with anyone who is attempting to speak or publish nor punish him or her thereafter for having done so.
By contrast, it requires some straining of the text to construe the Amendment’s explicit preclusion of government interference as conferring upon each citizen a presumptive right of access to any government-held information which may interest him or her. While one disposed to stretch the language to reach this case may do so, it nevertheless requires a level of abstraction that we are unwilling to ascribe to the framers of the First Amendment. It simply does not seem reasonable to suppose that the free speech clause would speak, as it does, solely to government interference if the drafters had thereby intended to create a right to know and a concomitant governmental duty to disclose.
B.
Fortunately, we have more than the text of the free speech clause to guide us. The issue that we face today is not one that has arisen only recently in our evolution as a free society. Citizen access to government-held information was an issue raised and debated in the Constitutional Convention, in the state assemblies that deliberated on ratification, and in the First Congress of the United States. Those debates confirm that the founders of the Republic considered an informed public essential to our representative system of self-government.
The concern for an informed public led to the adoption of a number of constitutional provisions. In Article I, Section 9, it is provided that “a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” Article II, Section 3 further provides that the President “shall from time to time give to the Congress Information of the State of the Union ...” Article I, Section 5 specifically directs that each House of Congress shall “from time to time publish ... [a Journal of its Proceedings], excepting such Parts as may in their Judgment require Secrecy.”
Some participants in these debates felt that these constitutional provisions were inadequate. In the discussion leading to adoption of the Journal publication clause, for example, James Wilson, a member of the Pennsylvania delegation, contended that “the people have a right to know what their agents are doing or have done, and it should not be in the option of the legislature to conceal their proceedings.”
Give us at least a plausible apology why Congress should keep their proceedings in secret. They have the power of keeping them secret as long as they please [in article I, section 2, clause 3], for the provision for a periodical publication is too inexplicit and ambiguous to avail any thing. The expression from time to time, as I have more than once observed, admits of any extension. They may carry on the most wicked and pernicious of schemes under the dark veil of secrecy. The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them. The most iniquitous plots may be carried on against their liberty and happiness.8
Nonetheless, even Henry conceded that not all transactions should be published, such as those related to “military operations or affairs of great consequence ... till the end which required their secrecy should have been effected.”
Nor did the founding fathers, as they undertook the practical implementation of their new government, find that public, at will access to government information was a necessary prerequisite to an informed electorate. Seventeen members of the First Congress had been delegates to the Constitutional Convention. It was they and their fellow members of the First Congress who proposed the first ten amendments. As the Supreme Court recently observed, “the First Congress ‘was a Congress whose constitutional decisions have always been regarded, as they should be regarded, as of the greatest weight in the interpretation of that fundamental instrument.’ ” Lynch v. Donnelly, 465 U.S. 668, 674, 104 S.Ct. 1355, 1359, 79 L.Ed.2d 604 (1984) (quoting Myers v. United States, 272 U.S. 52, 174-75, 47 S.Ct. 21, 44-45, 71 L.Ed. 160 (1926)).
The members of this First Congress did not open their own proceedings to the public. Following the tradition of the colonial assemblies and the Constitutional Convention itself, the Senate met behind closed doors until 1794 and the House followed a similar practice until the War of 1812.
The executive branch from the early days of the Republic also followed practices fundamentally inconsistent with an understanding that members of the public had a constitutionally protected right of access to government information. Thomas Jefferson, a strong proponent of public access,
With respect to papers, there is certainly a public and a private side to our offices. To the former belong grants of land, patents for inventions, certain commissions, proclamations, and other papers patent in their nature. To the other belong mere executive proceedings. All nations have found it necessary, that for the advantageous conduct of their affairs, some of these proceedings, at least, should remain known to their executive functionary only. He, of course, from the nature of the case, must be the sole judge of which of them the public interests will permit publication. Hence, under our Constitution, in requests of papers, from the legislative to the executive branch, an exception is carefully expressed, as to those which he may deem the public welfare may require not to be disclosed____17
Thus, Jefferson believed that the balance between the public’s interest in knowing about the workings of government and the executive’s need for secrecy should be struck by the executive. Jefferson’s approach is consistent with that of Congress, leaving to the political process ultimate resolution of what and how much information will be deemed confidential.
Our national experience has shown that this reliance upon the political process has not been misplaced and that the people’s representatives have not been unresponsive to political pressure when increased public access is needed. The last three decades have produced profound changes in the law of access to government information. The relative recency of these changes may be traced to the greater public need for such information that has accompanied the growth of government at all levels. On the federal level, political pressure for greater access has led to passage of three significant statutes governing release of government-held information: the Freedom of Information Act of 1967,
C.
Thus, decisions as to how much governmental information must be disclosed in order to make democracy work historically have been regarded as political decisions to be made by the people and their elected representatives. Conversely, the judiciary has never asserted the institutional competence to make such decisions. The reason seems apparent. Neither the free speech clause nor the structure of the government described by the Constitution yields any principled basis for deciding which government information must be made available to the citizenry and which need not.
The absence of a principled basis for defining the right to know was noted in Houchins v. KQED, Inc., 438 U.S. 1, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978), the Supreme Court case which offers the most helpful guidance in the current context. In Houchins, the press requested access to county jail facilities, contending that “access to penal institutions is necessary to prevent officials from concealing prison conditions from the voters and impairing the public’s right to discuss and criticize the prison system and its administration.” 438 U.S. at 8, 98 S.Ct. at 2593. While the right asserted was a press right of access, the underlying premise of the supporting argument was that press access is necessary to vindicate the public’s right to informed self-government. The Chief Justice’s characterization of the position of the respondents in Houchins is reminiscent of that of Times Leader here:
From the right to gather news and the right to receive information, they argue for an implied special right of access to government-controlled sources of information. This right, they contend, compels access as a constitutional matter. Respondents suggest further support for this implicit First Amendment right in the language of Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 449, 80 L.Ed. 660 (1936), and Mills v. Alabama, 384 U.S. 214, 219, 86 S.Ct. 1434, 1437, 16 L.Ed.2d 484 (1966), which notes the importance of an informed public as a safeguard against “misgovernment” and the crucial role of the media in providing information____
438 U.S. at 7-8, 98 S.Ct. at 2592-93.
A majority of the seven judge Court in Houchins held that there is no First Amendment right of press access to government-held information and, in the process, rejected the idea of a First Amendment right of public access. The Chief Justice’s plurality opinion noted that the “Court has never intimated a First Amendment guarantee of a right of access to all sources of information within government control,” 438 U.S. at 9, 98 S.Ct. at 2593, and that the “undoubted right to gather news ... affords no basis for the claim that the First Amendment compels others — private persons or governments — to supply information.” 438 U.S. at 11, 98 S.Ct. at 2594. Turning from precedent to practicality, the Chief Justice continued:
The respondents’ argument is flawed, not only because it lacks precedential support and is contrary to statements in this Court’s opinions, but also because it invites the Court to involve itself in what*1172 is clearly a legislative task which the Constitution has left to the political processes____
******
There is no discernible basis for a constitutional duty to disclose, or for standards governing disclosure of or access to information. Because the Constitution affords no guidelines, absent statutory standards, hundreds of judges would, under the Court of Appeals’ approach, be at large to fashion ad hoc standards, in individual cases, according to their own ideas of what seems “desirable” or “expedient.” We, therefore, reject the Court of Appeals’ conclusory assertion that the public and the media have a First Amendment right to government information regarding the conditions of jails and their inmates and presumably all other public facilities such as hospitals and mental institutions.
438 U.S. at 12, 14, 98 S.Ct. at 2595, 2596 (emphasis supplied).
Justice Stewart was in agreement:
The First and Fourteenth Amendments do not guarantee the public a right of access to information generated or controlled by government, nor do they guarantee the press any basic right of access superior to that of the public generally. The Constitution does no more than assure the public and the press equal access once government has opened its doors. Accordingly, I agree substantially with what the opinion of THE CHIEF JUSTICE has to say on that score.
438 U.S. at 16, 98 S.Ct. at 2597 (Stewart, J., concurring in judgment) (emphasis supplied).
Contrary to the suggestion of Times Leader, invocation of “compelling state interest” analysis does not dispel the problem identified by the Chief Justice in Houchins. Recognition of an across-the-board First Amendment right to know would necessarily require the judiciary to “balance” the individual’s right of access against competing state interests. Initially at least, the values assigned to the competing secrecy interests
Adoption of Times Leader’s position would ultimately lead the courts to legislate categories of exclusions. Indeed, such an approach would seem to be required to prevent the newfound right to know from being set adrift in a sea of never-ending litigation. Congress fashioned its Freedom of Information Act list of exclusions over a ten-year period. It relied on the interaction of countless political forces and needed no principled basis for fashioning those exclusions. The courts will be forced to fashion their exclusions without the benefit of a similar process. But even if they succeed in some fashion, it would seem that any institutionally feasible categories are likely to be fundamentally at odds with the particularized inquiry ordinarily associated with “compelling state interest, least restrictive means” analysis. If, for example, as the Court held in Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct.
D.
Houchins retains its precedential value. Initially, it should be pointed out that Houchins was not an aberration. There are a number of other cases which similarly indicate that the First Amendment guarantees no general access to government information. See, e.g., Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965); Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); Pell v. Procurer, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974); and Saxbe v. Washington Post, 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514 (1974). It was this caselaw that led Justice Stewart to observe in 1975:
There is no constitutional right to have access to particular government information, or to require openness from the bureaucracy____ The public’s interest in knowing about its government is protected by the guarantee of a Free Press, but the protection is indirect. The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act.
The Constitution, in other words, establishes the contest, not its resolution. Congress may provide a resolution, at least in some instances, through carefully drawn legislation. For the rest, we must rely, as so often in our system we must, on the tug and pull of the political forces in American society.
Stewart, Or of the Press, 26 Hastings L.J. 631, 636 (1975).
Not until Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 564, 100 S.Ct. 2814, 2820, 65 L.Ed.2d 973 (1980), did the Supreme Court recognize a First Amendment right of access to some govemment-controlled information. Richmond Newspapers, Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982) and Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (Press-Enterprise I) comprise the trilogy of Supreme Court precedents upon which Times Leader relies as marking a one hundred and eighty degree turn in First Amendment jurisprudence. While these cases clearly represent a significant development, they do not expressly or impliedly overrule Houchins. These cases hold no more than that the government may not close government proceedings which historically have been open unless public access contributes nothing of significant value to that process or unless there is a compelling state interest in closure and a carefully tailored resolution of the conflict between that interest and First Amendment concerns.
Richmond Newspapers held that the public has a First Amendment right of access to criminal trials. Globe Newspaper held that a state statute closing all trials involving minor victims of sexual offenses violated this right. And Press-Enterprise I found that the First Amendment guarantee of an open trial extends to voir dire proceedings. Each of these cases applied the same approach for determining whether there was a First Amendment right of access to various aspects of the criminal trial. In the words of Justice Brennan, “resolution of First Amendment public access claims in individual cases must be strongly influenced by the weight of historical practice and by an assessment of the specific structural value of public access in the circumstances.” Richmond Newspapers, 448 U.S. at 597-98, 100 S.Ct. at 2838-39 (Brennan, J., concurring in judgment). These words were endorsed by Chief Justice Burger in Globe Newspaper, 457 U.S. at 614, 102 S.Ct. at 2624 (Burger, C.J., dissenting), and there can be little doubt that this two tier analysis currently commands the allegiance of a majority of the Court.
More recently, in First Amendment Coalition v. Judicial Inquiry & Review Board, 784 F.2d 467 (3d Cir.1986), we once again reviewed these Supreme Court precedents and noted the crucial role of a tradition of access:
Richmond Newspapers and the cases decided in its wake stressed the tradition of open trials in England and then later in colonial America. Since the Bill of Rights had been adopted “against the backdrop of the long history of trials being presumptively open,” 448 U.S. at 575, [100 S.Ct. at 2826] the Court concluded that the First Amendment prohibits the “government from summarily closing courtroom doors which had long been open to the public at the time that Amendment was adopted.” Id. at 576 [100 S.Ct. at 2827],
At 472. We went on in First Amendment Coalition to sustain Pennsylvania’s denial of access to proceedings before its Judicial Inquiry and Review Board in cases where that Board had not recommended to the Pennsylvania Supreme Court that discipline be imposed on a judicial officer. In so holding, we relied upon the fact that proceedings before judicial disciplinary boards were “administrative proceedings [which], unlike conventional criminal and civil trials, do not have a long history of openness.” At 472. To the contrary, we found that “the entity of the criminal justice system to which the Board is most akin” is the grand jury and noted that “tradition supports the secrecy of the grand jury.” At 473.
Since oral argument in this case, the Supreme Court has once again reaffirmed the approach we followed in First Amendment Coalition. In Press-Enterprise v. Superior Court, — U.S. -, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986), the Court noted that in cases dealing with an asserted First Amendment right of access, courts are to evaluate “two complementary considerations”:
First, because a “ ‘tradition of accessibility implies the favorable judgment of experience’ ”... [courts are to consider] whether the place and process has historically been open to the press and general public____
Second, [courts are to consider] whether public access plays a significant positive role in the functioning of the particular process in question____ These considerations of experience and logic are, of course, related, for history and experience shape the functioning of governmental processes. If the particular proceeding in question passes these tests of experience and logic, a qualified First Amendment right of public access attaches.
Press-Enterprise II, — U.S. at-, 106 S.Ct. at 2740-41 (citations omitted).
E.
We do not yet know whether the Supreme Court will apply its analysis of access in the context of judicial proceedings to the context of executive branch files. Assuming that it is to be so applied, however, under our case law and that of the Supreme Court, a party relying on the First Amendment as a source of a right of access to government-held information would normally have to allege and prove that access has traditionally been afforded to the public and that access “plays a significant positive role in the functioning of the particular process in question.” Press-Enterprise II, — U.S. at-, 106 S.Ct. at 2740. In this case, Times Leader has alleged that access is necessary in order that the public may evaluate the “effectiveness with which the defendants and the D.E.R. are protecting the environment in North
In addition to alleging a demand and refusal, the amended complaint simply asserts:
The Times Leader has a right to inspect and copy the DER documents and records it has requested from these defendants in their official capacity since these DER documents and records are the official records of the DER, the public agency for which the defendants work and are themselves public records.
Appendix A12 (emphasis supplied). In order to clarify what it meant by characterizing the requested documents as “public records,” Times Leader filed an affidavit indicating that other documents of a similar character had been produced for its inspection and, accordingly, that the Department had not consistently treated these categories of documents as non-public. Brief for Appellants, p. 14; Appendix A1629. Even as so supplemented, Times Leader’s allegations are insufficient to satisfy the historical access requirement of the First Amendment caselaw. Inconsistent government practice does not constitute the kind of historical tradition referred to in Press-Enterprise II, Richmond Newspapers and First Amendment Coalition. Moreover, Times Leader’s papers refer solely to present, not historic practice.
Finally, and most importantly, we believe the relevant historic practice in this case is not specifically that of Pennsylvania’s Department of Environmental Resources. The First Amendment rights recognized by Richmond Newspapers, Globe Newspaper, and Press-Enterprise I and II were not defined by reference to the practices of any given state agency. In each of these cases, the Court looked not to the practice of the specific public institution involved, but rather to whether the particular type of government proceeding had historically been open in our free society. In Globe Newspaper, for example, the issue of whether Massachusetts had interfered with an historically recognized source of public information was resolved not by reference to its practice in sex offense trials, but rather by reference to the Anglo-American tradition with respect to criminal trials. Similarly, in First Amendment Coalition, this court looked not to the past practices of Pennsylvania’s Disciplinary Board, but rather to the tradition of access to judicial disciplinary proceedings and grand jury proceedings generally. A contrary approach would not only lead to gross disparities in the content of the First Amendment rights recognized in these cases, it would also act as a powerful incentive to public officials to exercise their legally permissible discretion in favor of secrecy. Under such an approach, administrative decisions in favor of disclosure would hold the potential of conferring permanent, constitutional rights of access.
Because Times Leader has neither pleaded nor offered to prove the existence of a tradition of public access to the type of administrative records here in dispute, it cannot show that access in this situation enjoys “the favorable judgment of experience.” Press-Enterprise II, — U.S. at
F.
No federal court has perceived the need for the broad judicial intervention that Times Leader asks of us and no court has articulated a principled basis for fashioning the constitutional freedom of information act which that relief would necessarily entail. Moreover, such guidance as we have from the Supreme Court counsels against embarking on the suggested course. Accordingly, we will affirm the district court’s dismissal of Times Leader’s First Amendment right of access claim.
III. EQUAL PROTECTION
Although the claim was not artfully pleaded, the district court read Times Leader’s amended complaint as setting forth an equal protection claim. It described and disposed of that claim in the following paragraph:
Plaintiff also alleges that the information it seeks has been released to others. This, plaintiff alleges, violates its right to equal protection under the laws and “[s]uch selectivity by the defendants is a sufficient ground, standing alone, to warrant jurisdiction in this court over this dispute.” ... Plaintiff asserts that because the information it seeks has been withheld and other information, unspecified by plaintiff, has been released to other people, an equal protection issue arises. The court disagrees. First, plaintiff does not identify the particular, insular group which is receiving unfair or discriminatory treatment. The only groups that can be discerned from plaintiff’s averments are (1) those who have received the information they sought and (2) those who have not received the information they sought. Second, plaintiff does not even attempt to allege that the exact information was sought by all persons. Based upon these assertions, the Equal Protection Clause has not been implicated. The court, therefore, will grant defendants’ Motion to Dismiss on this issue.
App. A84-85 (footnote omitted).
It is true that Times Leader fails to specify what information, denied to it, has been disclosed to others. Reasonable minds can, accordingly, differ as to whether Times Leader sufficiently articulated its claim before the district court. Nevertheless, we believe the allegations, accepted by the district court as setting forth the equal protection claim, may be read to claim that the D.E.R. has been discriminating between newsseekers, granting access to those favorably disposed to it while denying access to those whom it considers unfriendly. Moreover, at oral argument before us, Times Leader represented that there was reason to believe that there had been D.E.R. discrimination between news-gatherers since the district court's decision. Given the seriousness of this claim and the public interest in having it resolved on its merits, we conclude that the judgment should be vacated and the case remanded to the district court. This will afford Times Leader an opportunity to develop a record in support of its equal protection claim.
IV. PENDENT STATE CLAIMS
Times Leader also appeals from the district court’s dismissal of its pendent state law claims. However, as the district court noted, under Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), the Eleventh Amendment, absent state consent, precludes federal courts from entertaining pendent state law claims “against state agencies and officers seeking prospective injunctive relief for a violation of state law,” Geis v. Board of Educ. of Parsippany-Troy Hills, 774 F.2d 575, 580 (3d Cir.1985). In this case, it is undisputed that Pennsylvania has not consented to be sued in a federal court. It follows that the
V. CONCLUSION
We will affirm the judgment of the district court insofar as it dismissed Times Leader’s First Amendment and pendent state law claims. We will reverse that judgment, however, insofar as it dismissed the equal protection claim, and remand for further proceedings consistent with this opinion.
. This definition of non-public records is consistent with Pa.Stat.Ann. tit. 65 (Purdon 1959 & Supp.1985), which provides for access to "every public record of an agency,” § 66.2, and further provides that:
the term “public records” 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*1167 of its official duties, ... it 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, or which would operate to the prejudice or impairment of a person's reputation or personal security, or which would result in the loss by the Commonwealth or any of its political subdivisions ... of Federal funds, excepting therefrom however the record of any conviction for a criminal act.
Pa.Stat.Ann. tit. 65, § 66.1(2).
. See, e.g., Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); New York Times v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971); New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Near v. Minnesota ex rel Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931).
. See, e.g., Pell v. Procunier, 417 U.S. 817, 832, 94 S.Ct. 2800, 2809, 41 L.Ed.2d 495 (1974); Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965).
. See, e.g., Press-Enterprise Co. v. Superior Court, — U.S. -, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (Press-Enterprise II); Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (Press-Enterprise I); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 564, 100 S.Ct. 2814, 2820, 65 L.Ed.2d 973 (1980).
. Article I, Section 5, of the Constitution of the United States provides in full:
"Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal."
. 5 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION, AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA IN 1787, at 408 (J. Elliot ed. 1881) [hereinafter cited as ELLIOT’S DEBATES] (statement of James Wilson).
. See O’Brien, The First Amendment and the Public’s “Right to Know, ” 7 Hastings Const.L.Q. 579, 593 (1980).
. 3 ELLIOT’S DEBATES, supra note 6, at 169-70.
. Id. at 170.
. Id. at 409.
. Watkins, Open Meetings under the Arkansas Freedom of Information Act, 38 Ark.L.Rev. 268, 271 & n. 96. Although reporters attended initial sessions of the House in 1789, by 1792 sessions were regularly closed. Id.
. Id. at 272.
. S.Rep. 474, 96th Cong. 2nd Sess., 126 Cong. Rec. S15209-10 (daily ed., Dec. 1, 1980).
. Id., at S15210.
. Id.
. Jefferson emphasized the value of public access to governmental information even when confronted with Shay’s Rebellion: “The way to prevent these irregular interpositions of the people, is to give them full information of their affairs thro’ the channel of the public papers, and to contrive that those papers should penetrate the whole mass of the people." Letter from Jefferson to Edward Carrington (Jan. 16, 1787), reprinted in 11 THE PAPERS OF THOMAS JEFFERSON 49 (J. Boyd ed. 1955), quoted in O’Brien, supra, 7 Hastings Const.L.Q. at 592.
. RANDALL, 3 LIFE OF THOMAS JEFFERSON 211 (1858), reprinted in WIGGINS, FREEDOM OR SECRECY 67-68 (1964).
. 5 U.S.C. § 552 (1984) (as amended). The Freedom of Information Act of 1967 itself amended the public access provisions of the Administrative Procedure Act, 5 U.S.C. §§ 1001-11 (1964). See Note, The Freedom of Information Act: A Critical View, 38 Geo.Wash.L.Rev. 150 (1969). When President Johnson signed the Freedom of Information Act on July 4, 1966, he stated,
[T]his bill in no way impairs the President’s power under our Constitution to provide for confidentiality when the national interest so requires. There are some who have expressed concern that the language of this bill will be construed in such a way as to impair government operations. I do not share this concern.
Statement on Signing Pub.L. 89-497, July 4, 1966, reprinted in Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act (1967), quoted in O’REILLY, FEDERAL INFORMATION DISCLOSURE 2-12.
. 5 U.S.C. § 552(a) (1984) (as amended).
. 5 U.S.C. § 552(b) (1976).
. O’REILLY, supra note 18, at 2-13.
. Watkins, supra note 11, at 268.
. Congress has also mandated the withholding of government-held information in a variety of situations, e.g., 18 U.S.C. §§ 793, 794, 641; 13 U.S.C. §§ 8, 9, 214; 26 U.S.C. § 6103.
. In accordance with the law of our circuit, the judiciary would weigh the value of secrecy against the value of public access to government information generally, rather than against the value to the public of the particular information sought. See United States v. Smith, 776 F.2d 1104 (3d Cir.1985). If not, the problem foreseen by the Chief Justice will be exacerbated immeasurably.
. See BeVier, An Informed Public, an Informing Press: The Search for a Constitutional Principle, 68 Calif.L.Rev. 482 (1980); Blasi, The Pathological Perspective and the First Amendment, 85 Colum.L.Rev. 449, 492 (1985); Henkin, The Right to Know and the Duty to Withhold: The Case of the Pentagon Papers, 120 U.Pa.L.Rev. 271, 278-79 (1971).
. Henkin, supra note 25, at 279.
. The analysis of historic practice in Richmond Newspapers, Globe Newspaper Co. and Press-Enterprise I focused on the “time when our organic laws were adopted.” Richmond Newspapers, 448 U.S. at 569, 100 S.Ct. at 2823 (opinion of Burger, C.J.); Globe, 457 U.S. at 605, 102 S.Ct. at 2619; Press-Enterprise I, 464 U.S. at 505, 508-09, 104 S.Ct. at 821, 823-24. Press-Enterprise II canvassed the last two hundred years of our national experience in reaching its conclusion that open preliminary hearings have been "accorded ‘the favorable judgment of experience.’ ” — U.S. at -, 106 S.Ct. at 2742. Justices Stevens and Rehnquist, dissenting in Press-Enterprise II, objected to the majority’s reliance on historical practice at a time after the First Amendment was adopted. In their view, the value of the historical analysis is in "what is revealed about the intentions of the Framers and ratifiers of the First Amendment.” — U.S. at-, 106 S.Ct. at 2748 (Stevens, J., dissenting).