Right to Know Law: Remand to OOR for Additional Fact-finding based on Public Safety Concerns
Pennsylvania State Police v. ACLU, 2021 WL 5356532 (Pa. Cmwlth.) (unpublished), allocatur granted Mar. 30, 2022, appeal docket 44 MAP 2022
This Right to Know Law (“RTKL”) dispute over disclosure of the Pennsylvania State Police (“PSP”)’s social media monitoring policy returns to the Supreme Court following the Supreme Court’s remand to the Commonwealth Court in Pa. State Police v. Am. Civ. Liberties Union of Pa., 232 A.3d 654 (Pa. 2020), and Commonwealth Court’s decision on remand ordering that the Office of Open Records (“OOR”) conduct additional factfinding as to whether the records in question are exempt from disclosure under the threat to public safety exemption, even though the PSP did not request additional factfinding or identify additional facts that, if added to the record, would support application of that RTKL exception.
Background
The American Civil Liberities Union of Pennsylvania (“ACLU”)’s made a record request to PSP pursuant to the RTKL seeking “a copy, in digital format, of [PSP]’s complete, un[ ]redacted AR 6-9 regulation, which establishes policies and procedures for PSP personnel when using social media monitoring software.” Slip op. at 2. In response, PSP provided a heavily redacted copy of the requested policy (also referred to as “AR 6-9”), claiming that that the redacted portions of the policy were exempt from disclosure under Section 708(b)(2) of the RTKL (prohibiting disclosure of information that would be reasonably likely to threaten public safety or preparedness). ACLU appealed PSP’s denial of the redacted portions of the policy to OOR.
In support of its argument before OOR that release of the requested information would allow individuals with nefarious motives to more easily conceal their criminal activity and evade police scrutiny, PSP submitted an affidavit from its Director of the Bureau of Criminal Investigation, Major Douglas J. Burig. In his affidavit, Major Burig addressed each redacted section of the policy, explaining its nature, and asserting that disclosure could jeopardize an investigation. ACLU challenged Major Burig’s affidavit, arguing that it failed to link each section’s redactions to reasonable public safety concerns. OOR conducted in camera review of the unredacted policy and concluded that release of the policy would not threaten public safety, reasoning that “[t]he text of the prohibitions and authorizations within this section [ ] is broad, in contrast with the narrow scope of the prohibitions, and the prohibitions are based on known law” and that “the threats outlined in PSP’s affidavit simply do not match the text of the policy.” Slip op. at 3, 5.
PSP appealed to Commonwealth Court, which reviewed Major Burig’s affidavit, but did not conduct in camera review of the unredacted document. In Pa. State Police v. Am. Civ. Liberties Union of Pa., No. 1066 C.D. 2017 (Pa. Cmwlth. 2018) (“ACLU-I”), Commonwealth Court reversed OOR’s final determination, reasoning that:
… the affidavit was sufficiently detailed to sustain PSP’s burden of proof, in that it (i) described the nature of the records sought; (ii) connected the nature of AR 6-9 to the reasonable likelihood that disclosure would threaten public safety and impair PSP’s public safety function; and (iii) noted that disclosure would allow certain individuals to more easily conceal their criminal activities and evade police scrutiny.
Slip op. at 3.
After granting allocatur, the Supreme Court vacated the Commonwealth Court’s decision in ACLU-I and remanded the matter to Commonwealth Court for further proceedings and specifically directed Commonwealth Court to conduct an in camera review of the unredacted policy on remand.
Commonwealth Court’s In Camera Review and Decision on Remand
On remand, Commonwealth Court conducted an in camera review of the policy, providing the following section-by-section analysis:
Our review of Section 9.03 reveals that it lists the categories of valid law enforcement purposes for which monitoring may be employed and includes limitations to assure compliance with statutory and constitutional requirements. However, the text of Section 9.03 and the description and statements in the affidavit concerning the risks arising from disclosure are insufficient to allow us to determine whether disclosure of the text of Section 9.03 could reasonably be expected to aid criminals in evading detection of illegal activities. Accordingly, we cannot determine from the current record whether disclosure of this section would be reasonably likely to threaten public safety or preparedness.
PSP redacted the entirety of Section 9.04 of AR 6-9 except for the heading, “Authorization to Access Real-Time Open Sources and/or Real-Time Open Source Networks.” Major Burig stated that this section describes when a Trooper must obtain a supervisor’s approval in an investigation and what steps may be taken to further that investigation, including the approval process to establish a specific investigative method. Major Burig posited that disclosure would expose the specific investigative method and allow those involved in criminal activity to impede investigations.
Our review indicates that this section states when a supervisor’s authorization is needed for on-line investigations and the purposes for which an investigator may use an on-line alias. Like Section 9.03, however, the text of Section 9.04 and the description and statements in the affidavit concerning the risks arising from disclosure are insufficient to allow us to determine whether disclosure of the text of Section 9.04 could reasonably be expected to aid criminals in evading detection of illegal activities. Accordingly, we cannot determine from the current record whether disclosure of this section would be reasonably likely to threaten public safety or preparedness.
PSP redacted the entirety of Section 9.05 of AR 6-9, except for the heading, “Authorization Procedures for the Use of Online Aliases and Online Undercover Activity.” Major Burig explained this section concerns PSP’s ability to use open sources in an undercover capacity and provides policies, procedures, and operational details regarding undercover activity. He stated that this information would provide criminals with tactics PSP uses when conducting undercover investigations, thereby jeopardizing PSP’s investigations and ability to catch individuals.
Our review of Section 9.05 reveals that it states the forms required and the procedures to be followed in documenting approval for using and altering aliases and conducting on-line investigations. Like Section 9.03, Section 9.05 includes some limitations to assure compliance with statutory and constitutional requirements. However, the text of Section 9.05 and the description and statements in the affidavit concerning the risks arising from disclosure are insufficient to allow us to determine whether disclosure of the text of Section 9.05 could reasonably be expected to aid criminals in evading detection of illegal activities. Accordingly, we cannot determine from the current record whether disclosure of this section would be reasonably likely to threaten public safety or preparedness.
PSP redacted the entirety of Sections 9.06, 9.07 and 9.08, except for the headings “Deconfliction,” “Utilizing Real-Time Open Source Monitoring Tools,” and “Source Reliability and Content,” respectively, as well as Subsection C of Section 9.09, which appears under the heading “Documentation and Retention.” Major Burig explained that these sections contain information regarding when an investigation may be terminated, situations in which to use open source methods, and procedures used to verify the information obtained. He stated that disclosure of this information would reveal how PSP conducts its investigations using open sources, thereby jeopardizing PSP’s ability to conduct such investigations in the future.
Our review reveals that Section 9.06 provides for avoiding duplication in the use of aliases. Section 9.07 authorizes use of real-time open source monitoring when appropriate. Section 9.08 requires corroboration of information obtained by the use of such monitoring. Section 9.09, including Subsection 9.09C, governs retention of information obtained from such monitoring and is general in nature. However, the text of these sections and the descriptions and statements in the affidavit concerning the risks arising from their disclosure are insufficient to allow us to determine whether disclosure of the text of these sections could reasonably be expected to aid criminals in evading detection of illegal activities or to aid unacceptable candidates in hiding unfavorable background information. Accordingly, we cannot determine from the current record whether disclosure of these sections would be reasonably likely to threaten public safety or preparedness.
PSP redacted the entirety of Section 9.10 of AR 6-9, except for the heading, “Utilization of Real-Time Open Sources for Employment Background Investigations.” Major Burig explained that PSP conducts background investigations on employees and may use open sources to determine whether a candidate for Trooper is suitable for employment. He stated that the information was redacted because it would jeopardize PSP’s ability to hire qualified individuals and that disclosure would reveal the specific information that may be reviewed to determine whether a candidate is suitable for employment. He further explained that PSP takes steps to ensure candidates are suitable for employment in order to protect the public and the “Department.”
Like most of the other sections of AR 6-9, Section 9.10 contains provisions allowing background investigations of candidates for employment and includes limitations to assure compliance with statutory and constitutional requirements. However, the text of Section 9.10 and the description and statements in the affidavit concerning the risks arising from disclosure are insufficient to allow us to determine whether disclosure of the text of Section 9.10 could reasonably be expected to aid criminals in evading detection of illegal activities or to aid unacceptable candidates in hiding unfavorable background information. Accordingly, we cannot determine from the current record whether disclosure of this section would be reasonably likely to threaten public safety or preparedness.
Major Burig also addressed Section 9.02 of AR 6-9, entitled “Definitions,” under which some of the terms and their definitions were redacted. Major Burig stated that disclosure of the redacted language would provide insight into how PSP conducts an investigation and what sources and methods it would use.
However, our review of the text of Section 9.02 and the description and statements in the affidavit concerning the risks arising from disclosure are insufficient to allow us to determine whether disclosure of the redacted language in this section would be reasonably likely to threaten public safety or preparedness.
Slip op. at 5-9 (internal record citations omitted). Based on this analysis, Commonwealth Court found that “although PSP was afforded an opportunity to present an affidavit in support of nondisclosure, and despite Major Burig’s effort to be as explicit as possible in explaining the risks of disclosing the full text,” the affidavit was insufficient “to connect the text of [the policy] with the risks [Major Burig] articulates.” Slip op. at 10-11. However, the court concluded that “PSP should be given a further opportunity to explain the nature and degree of the risks it claims are inherent in potential disclosure of the contents of” the policy, reasoning that:
…we recognize that an affiant may walk a fine line in attempting to offer sufficient specificity to describe such risks without effectively divulging the contents of the documents at issue. Moreover, as in Carey, “[w]hen security-related [exemptions] are asserted in the police or prison context, and responsive records implicate valid security concerns, and an agency’s proof is insufficient to discern the contents of responsive records, seeking additional evidence may be appropriate.” [Carey v. Pa. Dep’t of Corr., 61 A.3d 367, 377 (Pa. Cmwlth. 2013)].
Slip op. at 11. Accordingly, Commonwealth Court vacated OOR’s Final Determination and remanded the matter to the OOR “for further supplementation of the record, including an evidentiary hearing,” and issuance of a new determination. Id.
The Pennsylvania Supreme Court granted allocatur as to the following issue:
Does a reviewing court abuse its discretion by remanding a RTKL appeal to the OOR for additional fact-finding where: (i) the reviewing court concludes that the agency has failed to meet its burden of proving the applicability of the only RTKL exception at issue in the case; (ii) the agency has never requested additional factfinding or identified additional facts that, if added to the record, would support application of that RTKL exception; and (iii) there is no fact in dispute other than the ultimate question whether the record at issue is exempt from disclosure under the RTKL?
For more information, contact Kevin McKeon or Dennis Whitaker.