Am. Civil Liberties Union of Pa. v. Pa. State Police

• Decision Date: 16 June 2020
• Docket Number: No. 66 MAP 2018,66 MAP 2018
• Parties: AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA, Appellant v. PENNSYLVANIA STATE POLICE, Appellee
• Court: Pennsylvania Supreme Court

232 A.3d 654

AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA, Appellant

v.PENNSYLVANIA STATE POLICE, Appellee

No. 66 MAP 2018

Supreme Court of Pennsylvania.

Argued: November 19, 2019

Decided: June 16, 2020

OPINION

JUSTICE WECHT

The Right-to-Know Law ("RTKL")¹ "is designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials, and make public officials accountable for their actions."² In 2009, the General Assembly enacted the RTKL, replacing its predecessor Right to Know Act with an alternative paradigm that more strongly tilted in favor of maximizing transparency.³ Accordingly, when resolving disputes regarding the disclosure of government records, agencies and reviewing courts must begin from a presumption of transparency. Of sound necessity, there are statutory exceptions to that presumption, one of which is at issue in this case. But the Office of Open Records ("OOR"), which reviews appeals of agencies' refusal to disclose documents pursuant to statutory exemptions, and courts reviewing OOR's decisions, must construe such exceptions strictly, lest they subvert the RTKL's purpose.⁴ In this case, the Commonwealth Court overturned OOR's ruling directing disclosure of a Pennsylvania State Police policy document, and it did so without considering the entirety of the record upon which OOR based its decision. We agreed to review the court's self-imposed limitation upon its review of OOR's decision. We hold that the court abused its discretion. Thus, we vacate its ruling, and we remand.

In March of 2017, the American Civil Liberties Union ("ACLU") filed a RTKL request with the Pennsylvania State Police ("PSP") seeking disclosure of PSP's "complete, unredacted AR 6-9 regulation, which establishes policies and procedures for PSP personnel when using social media monitoring software." OOR Final Determination, 7/17/2017, at 1 (hereinafter, "O.F.D."). On March 13, 2017, PSP provided the ACLU with "a heavily-redacted nine-page document entitled ‘AR 6-9 Real-Time Open-Source-Based Investigation and Research’ " (hereinafter, "the Policy"). Id. at 1-2. The Policy comprised ten sections numbered 9.01 through 9.10. Of these, only Section 9.01 ("Purpose") was entirely unredacted.⁵ Sections 9.03 ("Utilization of Real-Time Open Sources as an Investigative Tool"), 9.04 ("Authorization to Access Real-Time Open Sources and/or Real-Time Open-Source Networks"), 9.05 ("Authorization Procedures for the Use of Online Aliases and Online Undercover Activity"), 9.06 ("Deconfliction"), 9.07 ("Utilizing Real-Time Open-Source Monitoring Tools"), 9.08 ("Source Reliability and Content"), and 9.10 ("Utilization of Real-Time Open Sources for Employment Background Investigations") were entirely redacted but for their titles. Sections 9.02 ("Definitions") and 9.09 ("Documentation and Retention") were redacted in part. In sum, the redactions obscured approximately seven pages of the nine-page document.

PSP also provided the supporting verification of Kim Grant, the Deputy Agency Open Records Officer for PSP, in which she cited what we will refer to as "the public safety exception" as the basis for the redactions. Verification of Kim Grant, 3/13/2017, at 1-2. That provision exempts from disclosure "[a] record maintained by an agency in connection with the military, homeland security, national defense, law enforcement or other public safety activity that, if disclosed, would be reasonably likely to jeopardize or threaten public safety or preparedness or public protection activity." 65 P.S. § 67.708(b)(2).

On April 3, 2017, ACLU filed an appeal and brief with the OOR, asserting that PSP had not provided a sufficient basis for its invocation of the public safety exception. As required by statute, an appeals officer⁶ was assigned. Id. § 67.1101(a)(2). The appeals officer sent the parties a briefing schedule.

The ACLU's OOR brief began by accurately reviewing the governing burdens and standards, as provided by the RTKL and judicial decisions interpreting that statute. Under the RTKL, "[a] record in the possession of a Commonwealth agency ... shall be presumed to be a public record" unless it is exempt under Section 708, protected by a privilege, or exempt from disclosure under other federal or state law or regulation or a judicial order. Id. § 67.305(a). Pursuant to Section 708, "[t]he burden of proving that a record of a Commonwealth agency or local agency is exempt from public access shall be on the Commonwealth Agency ... by a preponderance of the evidence." Id . § 67.708(a)(1).⁷

To date, ACLU noted, only the Commonwealth Court has translated the statutory burden into an evidentiary test relative to the public safety exception. Under that test, PSP must establish (1) that "the record at issue relates to a law enforcement or public safety activity," and (2) that "disclosure of the record would be ‘reasonably likely’ to threaten public safety or a public protection activity." Carey v. Pa. Dept. of Corrs. , 61 A.3d 367, 374-75 (Pa. Cmwlth. 2013). Demonstrating reasonable likelihood "requir[es] more than speculation." Id. at 375. To establish such likelihood, the agency must submit specific evidence, and it may satisfy its burden by affidavit. Where it relies upon an affidavit, it must "(1) include[ ] detailed information describing the nature of the records sought; (2) connect[ ] the nature of the various records to the reasonable likelihood that disclosing them would threaten public safety in the manner described; such that, (3) disclosure would impair [the agency's] ability to perform its public safety functions." Id. at 376. Merely citing the affiant's experience and alleging a general risk of a threat to public safety or an impairment of the agency's public protection activities will not suffice. See OOR Brief for ACLU at 2 (citing Harrisburg Area Comm. Coll. v. OOR , 2110 C.D. 2009, 2011 WL 10858088, at *7 (Pa. Cmwlth. May 17, 2011) (unpublished) (hereinafter " HACC ")⁸ ).

ACLU contended that Ms. Grant's affidavit failed to satisfy this burden, and requested the opportunity to brief the matter further if PSP provided a supplemental affidavit. Id. at 3 n.2. ACLU also suggested that it might be appropriate for OOR to review the unredacted record in camera against any such affidavit. Id. at 3.

In its response, PSP explained the bases for its redactions as embodied in the sworn affidavit of Major Douglas J. Burig, a twenty-two-year PSP veteran serving as the Director of PSP's Bureau of Criminal Investigation (hereinafter, "the Burig Affidavit" or "the Affidavit").⁹ Major Burig detailed his background and averred that disclosure of the redacted information in the Policy "would jeopardize PSP's ability to conduct criminal investigations and other law enforcement activities it engages in to protect the public." Burig Affidavit at 2 ¶6. He then reviewed the redacted sections one by one, briefly describing each section's function and explaining in relatively general terms why he believed that disclosure of the redacted material would impede law enforcement or compromise public safety. Id. at 3-4 ¶¶7-13.

In reply, ACLU argued that the Burig Affidavit did not satisfy the stringent Carey standard because it did not "tie each of [the] nine sections' redactions to reasonable public safety concerns." OOR Reply Brief for ACLU at 2. Furthermore, other law enforcement agencies publicly released their social media investigative policies (in one case, with minimal redaction), which appeared to be "substantially similar" to the Policy. Id. ACLU cited this as cause to question Major Burig's assertions regarding the risks of disclosure.¹⁰

The appeals officer then sent the parties an email indicating that "this case would benefit from a review of the records in camera ." Email, Jordan Davis to ACLU and PSP, 5/18/2017. He also asked whether either party objected to in camera review. Both parties responded that they had no objection. See, e.g. , Email, Nolan Meeks to Jordan Davis, 5/19/2017 ("PSP has no objection to the in camera review."). PSP provided the unredacted record for review in camera . Following review, and without a hearing,¹¹ OOR issued its final decision in ACLU's favor.

OOR characterized the Policy as "describ[ing] best practices, authorization procedures, purposes and limitations for PSP Troopers when using internet resources—including, but not limited to, sites commonly described as ‘social media’ sites—in a professional capacity." O.F.D. at 4. OOR characterized PSP as contending that "the disclosure of the record would be reasonably likely to threaten public safety because knowledge of the restrictions and techniques under which PSP Troopers work could permit third parties to more easily evade PSP's online efforts and hinder PSP's attempts to investigate criminal matters or perform background checks." Id. at 5. Acknowledging Major Burig's section-by-section account of the reasons for the redactions, OOR found that "the essential thread of his argument is that a third party with possession of these materials could use them to avoid PSP's scrutiny online, gauge which platforms of discussion PSP commonly uses, and craft strategies to render PSP unable to effectively monitor their sources." Id .

OOR also reviewed the Policy section by section, explaining in broad terms why, as to each, the Affidavit's claims regarding the likely effect of disclosure did not square with the text of the redacted material. See id. at 6-9. But it suffices for our purpose to focus upon OOR's broader observations. In this regard, OOR prefaced its section-specific analyses as follows:

[T]he authorizations and prohibitions contained in each section are generalized, permitting PSP to use various open-source tools whenever it suspects criminal activity. The processes described throughout are strictly internal and administrative in nature, providing third parties with no opportunity to intercept or alter any Trooper's

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