RTKL; Sufficiency of Evidence; In Camera Review

Pennsylvania State Police v. American Civil Liberties Union of Pa., 2018 WL 2272597 (Pa. Cmwlth. 2018) (unreported), allocatur granted Dec. 3, 2018, appeal docket 66 MAP 2018

This case arises the Americans Civil Liberties Union of Pennsylvania (ACLU) request pursuant to the Right to Know Law seeking disclosure of the Pennsylvania State Police (PSP)’s social media policy. Specifically, the ACLU sought “a copy, in digital format, of Pennsylvania State Police’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 1. PSP responded by granting in part and denying in part the request and provided ACLU with a redacted copy of AR 6–9. In its response, PSP stated the redacted information contained in the policy was exempt from disclosure under Section 708(b)(2) of the RTKL because disclosure of the information would be reasonably likely to threaten public safety or preparedness.

ACLU appealed to the Pennsylvania Office of Open Records (OOR) challenging PSP’s redactions. PSP argued that release of the requested information would allow individuals with nefarious motives to more easily conceal their criminal activity and evade police scrutiny. In support, PSP submitted an affidavit from its Director of the Bureau of Criminal Investigation, Major Douglas J. Burig, which addressed each redacted section of the policy, explained its nature and how disclosure could jeopardize an investigation. ACLU countered that Major Burig failed to link each section’s redactions to reasonable public safety concerns. ACLU also provided copies of unredacted social media policies from other law enforcement agencies to show what was likely contained in the PSP’s redactions and that the disclosure of those sections could not reasonably be viewed as threatening public safety.

OOR ordered PSP to produce an unredacted copy of the policy for in camera review. After reviewing the document in camera, the OOR Hearing Officer concluded that release of the redacted information is not reasonably likely to jeopardize public safety and therefore is not exempt from disclosure. OOR ordered PSP to provide ACLU with unredacted copies of all responsive records within 30 days.

PSP appealed to Commonwealth Court, providing the agency with an automatic stay of OOR’s order directing disclosure. PSP argued that Major Burig’s Affidavit was sufficient evidence to prove that the redacted sections of the policy are exempt from disclosure because knowledge of the prohibition will threaten public safety. PSP further argued that the Hearing Officer erred when, based on his in camera review of the policy, he substituted his own judgment for that of Major Burig’s regarding whether disclosure is “reasonably likely” to jeopardize PSP’s ability to conduct investigations using open source methods. Finally, PSP argued that the Hearing Officer applied an erroneous legal standard in determining that because the information was “generalized,” “common knowledge,” “broad,” “based upon known law,” “sufficiently vague” and that “no detail … could be manipulated by third parties[,]” the information is public record instead of considering the harm that would result from disclosure. Slip Op. at 3.

ACLU maintained that the Affidavit was not sufficient to sustain PSP’s burden and “that while the Affidavit has the aura of detail, it is conclusory” and suggested that Commonwealth Court conduct its own in camera review of the policy. ACLU further argued that it was at a significant disadvantage when challenging Major Burig’s Affidavit because it could not review the redacted portions of the policy.

Focusing its review to Major Burig’s Affidavit, Commonwealth Court explained:

In his Affidavit, Major Burig discussed his 22 years of experience involving criminal investigations, criminal investigation assessment, and intelligence operations. He also explained the purpose of AR 6–9 and the role of open sources in relation to PSP’s law enforcement activities. Additionally, he addressed each section of AR 6–9 containing redacted information, stating the section title, describing the nature of the information redacted, and explaining how release of the information would jeopardize PSP’s ability to conduct criminal investigations and other law enforcement activities. In particular, disclosure would: (i) allow individuals to know when PSP can monitor their activities using open sources and allow them to conceal their activities (concerning Section 9.03); (ii) expose the specific investigative method used (concerning Section 9.04); (iii) provide criminals with tactics PSP uses when conducting undercover investigations (concerning Section 9.05); (iv) reveal how PSP conducts its investigations (concerning Sections 9.06, 9.07, 9.08 and subsection (c) of Section 9.09); and (v) provide insight into how PSP conducts an investigation and what sources and methods it would use (concerning Section 9.02). Additionally, Major Burig explained that disclosure would jeopardize PSP’s ability to hire suitable candidates, troopers in particular, because disclosure would reveal the specific information that may be reviewed as part of a background check to determine whether candidates are suitable for employment; candidates must be suitable to employ in order to protect the public (concerning Section 9.10).

Major Burig also stated there is a reasonable likelihood that disclosure would threaten PSP’s public protection activity of conducting investigations and other valid law enforcement activities.

Slip Op. at 10-11 (internal citations omitted). The court explained that Major Burig’s conclusion that harm due to disclosure of the policy was reasonably likely was not speculative or conclusory because it was based on his extensive experience and showed a nexus between the disclosure of the redacted information and the alleged harm as the affidavit:

(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 12. Accordingly, Commonwealth Court found Major Burig’s Affidavit was “legally sufficient, as a matter of law, to sustain PSP’s burden,” and OOR therefore erred in concluding that PSP failed to establish that the redacted portions of the policy are exempt from disclosure under the RTKL. Id. Moreover, Commonwealth Court refused to “assume that the language” of social media policies of other police departments “is, in fact, substantially similar” to the redacted portions of the policy and likewise found “what other police departments do with respect to releasing their policies is irrelevant to the present case.” Slip Op. at 12 n. 7.

Having found that Major Burig’s Affidavit adequately described the nature of the redacted information and was legally sufficient to sustain PSP’s burden, Commonwealth Court concluded it was not necessary to conduct its own in camera review of the record, explaining:

We note that Requester conceded at oral argument that this Court could decide this matter without conducting an in camera review. More importantly, however, we find it unnecessary to review the unredacted document under the circumstances here. In addition to such review being unnecessary given the detailed nature of Major Burig’s Affidavit, in general, where this Court has reviewed an unredacted document in camera, those situations usually have involved exemptions claimed under the attorney-client privilege or the predecisional deliberative process. See Twp. of Worcester v. Office of Open Records, 129 A.3d 44, 60 (Pa. Cmwlth. 2016) (stating in camera review is appropriate to assess claims of privilege and predecisional deliberations). However, as PSP argues, those situations are distinguishable. There, the actual words on the page are key to the determination, whereas here, it is the effect of the disclosure that is key. In other words, here, the actual words on the page are not at issue; rather, the issue is whether disclosure of those words “would be ‘reasonably likely’ to threaten public safety or a public protection activity.” See Carey [v. Pa. Dep’t of Corrections, 61 A.3d 367 (Pa. Cmwlth. 2013)]. As stated, Major Burig’s Affidavit sufficiently addresses that issue.

Slip Op. at 13. Accordingly, Commonwealth Court reversed OOR’s order directing release of the unredacted policy.

The Pennsylvania Supreme Court granted allocatur as to the following issues:

  1. Did the Commonwealth Court err in holding that the use of in camera review is inappropriate when the public-safety exemption is claimed and should be reserved for cases involving assertions of attorney client privilege, the work-product protection, and the predecisional deliberation exception?
  2. Given the standard understanding of plenary review, did the Commonwealth Court err when it reversed the OOR findings of fact without reviewing all of the evidence that OOR reviewed to make those findings?
  3. Did the Commonwealth Court err in finding that the Burig Affidavit, on its face, provided sufficient evidence of a threat to public safety to justify each of the redactions to PSP’s social media-monitoring policy – including the redaction of the “definitions” section and the provisions regarding social-media research on prospective employees?

Additionally the Supreme Court granted the Pennsylvania NewsMedia Association’s motion for leave to file an amicus brief in support of the ACLU.