ACLU of PA, Aplt. v. PA State Police ( 2020 )

[J-72-2019] [MO: Wecht, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
AMERICAN CIVIL LIBERTIES UNION OF : No. 66 MAP 2018
PENNSYLVANIA, :
: Appeal from the Order of the
Appellant : Commonwealth Court at No. 1066
: CD 2017 dated May 18, 2018
: Reversing the Order of the Office of
v. : Open Records at No. AP 2017-0593
: dated July 7, 2017.
:
PENNSYLVANIA STATE POLICE, : ARGUED: November 19, 2019
:
Appellee :
DISSENTING OPINION
JUSTICE MUNDY DECIDED: June 16, 2020
The Right to Know Law (RTKL) imposes the lowest evidentiary burden on parties
seeking to apply one of the narrow exceptions to disclosure—a preponderance of the
evidence standard. 65 P.S. § 67.708(a)(1). In determining the Commonwealth Court
should have reviewed the unredacted policy, the Majority implies the evidence submitted
by the Pennsylvania State Police (PSP), i.e., the Burig Affidavit, was not sufficient to
satisfy its burden of proof. In reaching this conclusion, the Majority seemingly ignores the
PSP’s specific proffered evidence, in favor of unnecessarily expanding the reviewing
court’s scope of review. Therefore, I respectfully dissent.
The RTKL “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.” 65 P.S. § 67.101. Our General Assembly has carved out
multiple exceptions regarding what constitutes a public record in order to accomplish
several important purposes, such as aiding the efficient administration of government,
safeguarding the privacy of government employees, and protecting the safety and welfare
of the Commonwealth. See, e.g., 65 P.S. § 67.708 (b)(2), (5), and (10). Section
67.708(b)(2), the applicable exception in this case, exempts certain documents
maintained by agencies such as the PSP 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). Agencies are charged with proving the application of the public safety
exception, as well as any other exception, by a preponderance of the evidence. 65 P.S.
§ 67.708(a)(1).
The evidence that must be proffered to meet the preponderance standard “is such
evidence as would lead a fact-finder to find that the existence of a contested fact is more
probable than the nonexistence of the contested fact.” Office of the Dist. Attorney of Phila.
v. Bagwell, 155 A.3d 1119, 1130 (Pa. Cmwlth. 2017). It is one of the lowest evidentiary
standards, and “tantamount to a more likely than not inquiry.” Del. County v. Schaefer ex
rel. Phila. Inquirer, 45 A.3d 1149 (Pa. Cmwlth. 2012).1 This means, in the context of the
current invocation of the public safety exception, the PSP is charged with proving that it
is more likely than not the policy’s disclosure would be reasonably likely to jeopardize
public safety or preparedness.
This is the test the Commonwealth Court set forth in Carey v. Pa. Dep’t of Corr.,
61 A.3d 367 (Pa. Cmwlth. 2013). To be clear, by articulating this standard, the Carey
Court did not offer a novel rule of law. Rather, the court merely synthesized the statutory
1 As the Majority points out, this Court has yet to define the preponderance of the evidence
standard under the RTKL. Majority Op. at 4. Despite the lack of a specific definition, we
can import general tenets of law to inform our inquiry. See, e.g., Commonwealth v. Batts,
163 A.3d 410 (Pa. 2017) (“A preponderance of the evidence is ‘a more likely than not
inquiry,’ supported by the greater weight of the evidence; something a reasonable person
would accept as sufficient to support a decision.”).
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requirement assigned to an agency attempting to prove certain documents warrant
concealment under the RTKL. Similarly, the Carey Court explained the persuasive value
of an affidavit and how a reviewing tribunal may consider such evidence. Carey, 61 A.3d
at 376 (“We must consider whether [an affidavit]: (1) includes detailed information
describing the nature of records sought; (2) connects 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 as to . . . the alleged threatening consequence.”). Again, the
Commonwealth Court provides helpful instruction, but offers no new jurisprudence.
When examining the Burig Affidavit in light of Carey, Major Burig sufficiently
explains why disclosure of the PSP’s policy is reasonably likely to jeopardize public
safety. The AR 6-9 policy contains information establishing “procedures for [the] PSP
when they use open sources for valid law enforcement purposes.” Burig Affidavit,
4/21/17, at 2. Major Burig then provides a sufficient nexus between each redacted policy
section and the ensuing harm. As it pertains to Section 9.03, Utilization of Real-Time
Open Sources as an Investigative Tool, he writes this section’s disclosure would “leave
Troopers at a disadvantage when investigating criminal activity, [and would] provide
criminals with a tactical advantage because they would know exactly when [the] PSP can
monitor their criminal activities through the use of open sources[,] thereby effectively
concealing their criminal activities from discovery.” Id. In regards to Section 9.04,
Authorization to Access Real-Time Open Sources and/or Real-Time Open Source
Networks, Major Burig writes, “[e]xposing this investigative method through the release
of this administrative regulation would allow those involved in criminal activity to employ
countermeasures to mitigate the effectiveness of this technique and impede
investigations.” Id. Major Burig offers an explanation equally as illuminating in regards
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to the remaining five redacted sections. Id. at 3 (“Public availability of [Section 9.05
(Authorization Procedure for the use of Online Aliases)] will jeopardize the ability of PSP
Troopers to conduct these types of investigation[s]. . . by providing the criminals with the
tactics [the] PSP uses when conducting undercover investigations”; “Public access to
[Section 9.06 (Deconfliction), Section 9.07 (Utilizing Real-Time Open-Source Monitoring
Tools), or Section 9.08 (Source Reliability of Content)] will reveal how [the] PSP conducts
its investigations using open sources, and therefore, would jeopardize [the] PSP’s ability
to conduct similar investigations in the future by revealing the investigative steps [the]
PSP would take during a similar investigation”; “Public disclosure of [Section 9.10
(Utilization of Real-Time Open Sources for Employment Background Investigations)] will
reveal what specific information may be reviewed when determining whether a candidate
is suitable for employment as a civilian or a Trooper.”).
Based on the information offered in the Burig Affidavit, the Commonwealth Court
properly concluded the Office of Open Records erred in determining the PSP had not
satisfied its burden. Major Burig’s Affidavit goes beyond the mere “tick[ing] off [of] Carey’s
three boxes.” See Majority Op. at 19. Rather, it links specific sections of the policy to the
resulting harm that is likely to threaten the PSP’s protection activities. See Fennell v. Pa.
Dep’t of Corr., 1827 C.D. 2015, 2016 WL 1221838, at *2 (Pa. Cmwlth. Mar. 29, 2016)
(“Generally, whether an agency establishes this exception is based on the level of detail
in the supporting affidavit.”). Major Burig’s Affidavit explicates the PSP’s methods and
protocols, and provides a tailored justification as to why the referenced information is
essential to the agency’s ability to ensure public safety, as referred to by the Majority.
See Majority Op. at 19 (“There can be no question that law enforcement agencies require
the ability to protect documents that would reveal methods, protocols, identities, and other
information the secrecy of which is essential to the agencies’ ability to ensure public
[J-72-2019] [MO: Wecht, J.] - 4
safety.”). By offering this degree of specificity, surely Major Burig’s averments warrant
the “degree of deference to law enforcement agencies’ opinions regarding how disclosure
of a given document might have such an effect.” Id.
The specificity found in the Burig Affidavit resembles the level found in Woods v.
Office of Open Records, 998 A.2d 665 (Pa. Cmwlth. 2010), where the affiant described
in detail the resulting harm that would ensue following the disclosure of records regarding
supervision strategies of sex offenders. Woods, 998 A.2d at 667 (“Sex offenders who
have knowledge of the scope and limits of the aforementioned procedures and practices
would be reasonably likely to perform illicit activity, or similarly exploit the limitations of
the parole agent’s review”; “[D]issemination of the redacted information would reveal the
capabilities and the scope of the Board’s sex offender management procedures and
policies.”). By contrast, the affiant in Harrisburg Area Community College (HACC) v.
Office of Open Records, 2110 C.D. 2009, 2011 WL 10858088 (Pa. Cmwlth. May 17,
2011), simply stated, “[b]ased upon my professional experience and judgment, a
disclosure [of the requested documents] in response to this RTKL would be reasonably
likely to jeopardize or threaten the [agency’s] statutorily-mandated public protection
activity.” HACC, at *14. As both parties note, the Commonwealth Court found the public
safety exception to apply in Woods; it did not in HACC.
Rather than address the sufficiency of the Burig Affidavit, the Majority instead
focuses on the reviewing tribunal’s scope of review. In my opinion, the review of a
challenged document is not necessary where, as here, it is clear the presented evidence
satisfies an agency’s burden of proof. The Majority reasons, “[w]here a court declines to
review a challenged document in camera based upon a supposition that an agency affiant
has accurately assessed the likely effect of a given disclosure simply because there is no
facial evidence of bad faith—especially where [the Office of Open Records] has
[J-72-2019] [MO: Wecht, J.] - 5
conducted such a review and found the affiant wanting under the governing standard—it
simply cannot be said that the court exercised sound discretion.” Majority Op. at 27.
However, by the Majority’s own admission, “[i]n the more common trial court-appellate
court setting, an appellate court is not bound to review every piece of evidence that the
trial court received or cited.” Id. at 16. Such should be the case instantly, where the
Commonwealth Court rightfully chose to adhere to this principle in light of the instructive
affidavit supplied by the PSP. Indeed, even Appellant concedes that “[t]here may be
some instances when it is easy to determine whether the affiant has correctly described
the record at issue”, thus precluding the necessity of an in camera review. Brief for ACLU
at 16. I see no reason to think that Major Burig’s Affidavit did not deserve this treatment,
especially when considering the agency’s burden under the RTKL.
Today’s holding requires reviewing courts to undertake processes that, as I believe
here, are not needed. By holding otherwise, I fear we are encumbering our tribunals in a
way that prohibits the expeditious and efficient resolution of RTKL issues, and with tasks
that simply are not necessary. See Bowling v. Office of Open Records, 75 A.3d 453, 482
(Pa. 2013) (Todd, J., dissenting) (“[A]s noted by the Commonwealth Court, the most
recent iteration of the RTKL reflects an intent by the legislature that issues regarding
access to public records be conducted in an expeditious and efficient manner.”). Since
the PSP has proven by a preponderance of the evidence that the public safety exception
applies, I respectfully dissent.
[J-72-2019] [MO: Wecht, J.] - 6