PSP v. ACLU of PA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania State Police, :
Petitioner :
:
v. :
:
American Civil Liberties :
Union of Pennsylvania, : No. 1066 C.D. 2017
Respondent : Argued: March 8, 2018
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: May 18, 2018
The Pennsylvania State Police (PSP) petitions for review of a Final
Determination of the Pennsylvania Office of Open Records (OOR) granting the
American Civil Liberties Union of Pennsylvania’s (Requester) appeal and ordering
PSP to provide Requester with unredacted copies of all responsive records within 30
days of the date of the determination.
Requester submitted a request to PSP pursuant to the Right-to-Know
Law (RTKL),1 seeking PSP’s social media policy. In particular, Requester asked for
“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.” Reproduced Record (R.R.) at 2a. PSP
1
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
responded by granting in part and denying in part the request. R.R. at 3a-4a.
Specifically, PSP provided Requester with a copy of the record but redacted non-
public information that PSP stated was exempt from disclosure under Section
708(b)(2) of the RTKL,2 id., because disclosure of the information would be
reasonably likely to threaten public safety or preparedness.
Requester filed an appeal with OOR. Before OOR, 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. See R.R. at
29a-30a. PSP submitted an Affidavit from its Director of the Bureau of Criminal
Investigation (BCI), Major Douglas J. Burig.3 See R.R. at 31a-34a. In his Affidavit,
Major Burig addressed each redacted section of AR 6-9, explaining its nature and
how disclosure could jeopardize an investigation. See id. Requester challenged
Major Burig’s affidavit, asserting that it failed to link each section’s redactions to
reasonable public safety concerns. See R.R. at 36a-39a. Requester provided copies
of unredacted social media policies from other law enforcement agencies in an
attempt to show what is likely contained in AR 6-9 and that the disclosure of those
sections cannot reasonably be viewed as threatening public safety. See R.R. at 48a-
72a.
2
65 P.S. § 67.708(b)(2). Section 708(b)(2) of the RTKL, known as the public safety
exemption, protects:
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 or a record that is designated classified by an
appropriate Federal or State military authority.
Id.
3
The Affidavit was subscribed and sworn to under penalty of perjury. R.R. at 34a.
2
Subsequently, OOR ordered PSP to produce an unredacted copy of AR
6-9 for in camera inspection, R.R. at 78a-79a, and PSP did so. After reviewing the
document in camera, the OOR Appeals Officer concluded that the redacted
information is not reasonably likely to jeopardize public safety and therefore is not
exempt from disclosure. Final Determination at 10. OOR ordered PSP to provide
Requester with unredacted copies of all responsive records within 30 days. PSP then
petitioned this Court for review.
Before this Court, PSP first argues that it provided sufficient evidence,
i.e., Major Burig’s Affidavit, to prove that the redacted sections of AR 6-9 are
exempt from disclosure. PSP argues that the Appeals Officer’s statement that
“‘there is no evidence that knowledge of the prohibition will threaten public safety’” 4
is erroneous, because the Affidavit is evidence. Second, PSP argues that the OOR
Appeals Officer erred when, following his in camera review of AR 6-9, 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 argues that the Appeals Officer applied an
erroneous legal standard when determining whether the redacted sections of AR 6-
9 are public records under the RTKL. PSP asserts that the Appeals Officer
determined 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.5 PSP maintains,
however, that these are not the standards by which an exemption is measured; rather,
the exemption looks to the harm that would result from disclosure.
4
PSP’s Brief at 15-16 (quoting Final Determination at 7).
5
PSP’s Brief at 21.
3
Requester, on the other hand, argues that the Affidavit was not
sufficient to sustain PSP’s burden. Requester maintains that while the Affidavit has
the aura of detail, it is conclusory. Requester urges this Court to conduct an in
camera review of AR 6-9.
In reviewing a final determination of the OOR involving a
Commonwealth agency, this Court’s standard of review is de novo and our scope of
review is broad or plenary. Bowling v. Office of Open Records, 75 A.3d 453 (Pa.
2013).
A principle underlying the RTKL is to allow citizens to scrutinize
government activity and increase transparency. SWB Yankees LLC v. Wintermantel,
45 A.3d 1029 (Pa. 2012). To that end, the RTKL provides that records in the
possession of an agency are presumed to be public. Section 305(a) of the RTKL, 65
P.S. § 67.305(a). That presumption does not apply, however, if the record is exempt
under Section 708(b) of the RTKL. Section 305(a)(1) of the RTKL, 65 P.S. §
67.305(a)(1); Woods v. Office of Open Records, 998 A.2d 665 (Pa. Cmwlth. 2010).
“Exemptions from disclosure must be narrowly construed due to the RTKL’s
remedial nature . . . .” Office of Governor v. Scolforo, 65 A.3d 1095, 1100 (Pa.
Cmwlth. 2013). “An agency bears the burden of proving, by a preponderance of the
evidence, that a record is exempt from disclosure under one of the enumerated
exceptions.” Brown v. Pa. Dep’t of State, 123 A.3d 801, 804 (Pa. Cmwlth. 2015);
see Section 708(a)(1) of the RTKL, 65 P.S. § 67.708(a)(1). “A preponderance of
the evidence standard, the lowest evidentiary standard, is tantamount to a more likely
than not inquiry.” Del. Cty. v. Schaefer ex rel. Phila. Inquirer, 45 A.3d 1149, 1156
(Pa. Cmwlth. 2012).
4
PSP relied on the public safety exemption under the RTKL, see 65 P.S.
§ 67.708(b)(2), as the sole reason for redacting information. See R.R. at 3a-4a. To
establish the public safety exemption, “an agency must show: (1) the record at issue
relates to a law enforcement or public safety activity; and[] (2) disclosure of the
record would be ‘reasonably likely’ to threaten public safety or a public protection
activity.” Carey v. Pa. Dep’t of Corrections, 61 A.3d 367, 374-75 (Pa. Cmwlth.
2013). Here, OOR concluded that “[t]he record is, on its face, related to PSP’s law
enforcement duties, as it concerns procedures for PSP to use while gathering
information on line.” Final Determination at 5. Thus, the issue here is whether PSP
met its burden of proving the second prong, i.e., whether disclosure of the record
would be “reasonably likely” to threaten public safety or a public protection activity.
“In interpreting the ‘reasonably likely’ part of the test, as with all the
security-related exceptions, we look to the likelihood that disclosure would cause
the alleged harm, requiring more than speculation.” Carey, 61 A.3d at 375.
However, “as clearly suggested by Section 708(b)(2) of the RTKL itself, the
agency’s burden does not include a requirement that the release of a record would
definitely threaten or jeopardize public safety or protection.” Harrisburg Area Cmty.
Coll. v. Office of Open Records (Pa. Cmwlth., No. 2110 C.D. 2009, filed May 17,
2011), slip op. at 11 (emphasis in original).6 Indeed, in Woods, this Court ruled that
records were exempt from disclosure where the evidence indicated that a possible
consequence of releasing the information would be the impairment of the agency’s
ability to perform its public safety function of monitoring certain individuals,
thereby threatening public safety. Woods, 988 A.2d at 670; see also HACC, slip op.
6
While this Court’s unreported memorandum opinions may not be cited as binding
precedent, they may be cited for persuasive value. Commonwealth Court Internal Operating
Procedure § 414(a), 210 Pa. Code § 69.414(a).
5
at 11-12 (discussing Woods and stating that “evidence of even the potential
impairment” of an agency’s public safety function is sufficient to satisfy the
agency’s burden to demonstrate that a record is not subject to disclosure under
Section 708(b)(2) of the RTKL).
To satisfy its burden of proof, an agency may submit an affidavit. See
Moore v. Office of Open Records, 992 A.2d 907, 909 (Pa. Cmwlth. 2010); see also
Global Tel*Link Corp. v. Wright, 147 A.3d 978, 980 (Pa. Cmwlth. 2016) (stating
that an agency may satisfy its burden of proof by unsworn declarations made under
penalty of perjury). In reviewing an affidavit where the public safety exemption is
claimed, this Court must consider whether the affidavit:
(1) includes detailed information describing the nature of
the 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 . . . [in relation to what
the agency claims to be] the alleged threatening
consequence.
Carey, 61 A.3d at 376. “Generally, whether an agency establishes this exception
depends on the level of detail in the supporting affidavit.” Fennell v. Pa. Dep’t of
Corr. (Pa. Cmwlth., No. 1827 C.D. 2015, filed March 29, 2016), slip op. at 5 (citing
Carey); see Carey, 61 A.3d at 375 (discussing Woods).
For example, in Woods, we held that the agency established that its
records concerning the Board of Probation and Parole’s (Board) “supervision
strategies” were exempt from disclosure. See Woods, 998 A.2d at 666. The affiant
described her role as deputy executive director for the Board, explained the purpose
of the record, and provided details regarding the substance of the record and the
6
ways in which a sex offender might use the information to evade or avoid detection.
Id. at 667-68. The critical factor in this Court’s decision was the detail which the
affiant provided regarding the substance of the records and the ways in which a sex
offender might use the information to evade or avoid detection. See Carey, 61 A.3d
at 375 (discussing Woods).
By contrast, in HACC, we found the affidavit submitted did not contain
sufficient detail to establish the public safety exemption. There, the requester sought
training curricula used to teach police officers about making arrests for driving under
the influence (DUI). HACC, slip op. at 1. HACC submitted an affidavit in which
its affiant stated, “[b]ased upon my professional experience and judgment [as
director of the Municipal Police Officer Education and Training Commission], a
disclosure of the Commission’s DUI curriculum in response to this RTKL request
would be reasonably likely to jeopardize or threaten the Commission’s statutorily-
mandated public protection activity.” Id., slip op. at 14. This Court found the
affidavit conclusory because it did nothing more than assert that the release of the
records would jeopardize the agency’s public protection activity without describing
in detail how such result might happen by virtue of the disclosure. Id.With these standards and cases in mind, we will review Major Burig’s
Affidavit.
In his Affidavit, Major Burig recounted his experience. Major Burig
explained that in his current position as Director of BCI, he is:
responsible for overseeing Divisions responsible for
intelligence gathering, specialized criminal investigation
support units, complex criminal investigations, and drug
investigations. In addition, [he is] responsible for making
policy recommendations concerning intelligence
7
gathering/sharing and the conducting of criminal
investigations.
R.R. at 31a. Major Burig also stated that prior to his current position,
[he] served as the Director of the Intelligence Division
within BCI where [he] oversaw PSP’s counterterrorism
initiatives, the state’s primary Intelligence fusion center,
and field intelligence operations throughout the
Commonwealth. Over the course of [his] career, [he has]
served in numerous disciplines within PSP including:
patrol; criminal investigations; criminal investigation
assessment; and analytical intelligence as the commander
to the Pennsylvania Criminal Intelligence Center (PaCIC).
Id. at 31a-32a.
Major Burig then stated that the regulation at issue “concerns
investigative and intelligence gathering policies, procedures, and methods.” R.R. at
32a. He explained that “the purpose of the regulation is to establish policies and
procedures for PSP Troopers when they use open sources for valid law enforcement
purposes.” Id. He further explained that the redactions were done “because public
release of these sections would jeopardize PSP’s ability to conduct criminal
investigations and other law enforcement activities it engages in to protect the
public.” Id. Major Burig then discussed each section that contained redactions. We
will review his Affidavit as it pertains to each section.
PSP redacted the entirety of Section 9.03 of AR 6-9 except for the
heading, “Utilization of Real-Time Open Sources as an Investigative Tool.” R.R. at
8a-10a. Major Burig stated that this section describes how investigating PSP
Troopers are to use open sources during an investigation, when they may and may
not use open sources, and when they may want to use alternative methods. Id. at
32a. Major Burig explained that disclosure would allow individuals to undermine
8
investigations and disadvantage PSP because individuals would know when PSP can
monitor their activities using open sources and conceal their activities. Id.PSP also 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.” R.R. at 10a-11a. 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. Id. at 32a. Major Burig stated that
disclosure would expose the specific investigative method and allow those involved
in criminal activity to impede investigations. Id.PSP also 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.” R.R. at 11a-13a. 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. Id. at 33a. He
further explained that disclosure of this information would provide criminals with
tactics PSP uses when conducting undercover investigations, thereby jeopardizing
PSP’s investigations and ability to catch individuals. Id.PSP also 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, entitled “Documentation and Retention.” R.R. at 14a-15a. 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
9
this information would reveal how PSP conducts its investigations using open
sources, thereby jeopardizing PSP’s ability to conduct such investigations in the
future. Id. at 33a.
PSP also 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.” R.R. at 15a. Major Burig explained that PSP conducts background
investigations on employees and may use open sources to determine a candidate’s,
specifically a candidate for Trooper, suitability for employment. Id. at 33a. He
explained 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.
Id. He further explained that PSP takes steps to ensure candidates are suitable for
employment in order to protect the public and the “Department.” Id. at 33a.
Major Burig also addressed Section 9.02 of AR 6-9, entitled
“Definitions,” under which some of the terms and their definitions were redacted.
R.R. at 7a. Major Burig stated that disclosure would provide insight into how PSP
conducts an investigation and what sources and methods it would use. Id. at 33a.
Major Burig stated that the redacted procedures, policies, and
information are uniform to all PSP investigations using open source methods. Id.He further stated that “[t]here is [a] reasonable likelihood that if any of the redacted
information were to be disclosed it would threaten the public protection activity of
PSP conducting criminal investigations and other valid law enforcement activities
using open source methods.” Id.After review of Major Burig’s Affidavit, we conclude that it was legally
sufficient to sustain PSP’s burden. In his Affidavit, Major Burig discussed his 22
10
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). R.R. at 32a-33a.
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). Id. at
33a.
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. Id. Where, as here, the affiant bases his
conclusion that such harm is reasonably likely on his extensive experience, such
11
conclusion is not speculative or conclusory. See Adams v. Pennsylvania State
Police, 51 A.3d 322 (Pa. Cmwlth. 2012) (finding that where the affiant based his
conclusions on his extensive experience, the affidavit was the result of this
experience and not mere speculation or conjecture).
Further, Major Burig’s Affidavit was detailed and not conclusory 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.
See Carey, 61 A.3d at 376. “This Court’s decisions support protection of [records]
under the public safety exception when the agency shows a nexus between the
disclosure of the information at issue and the alleged harm.” Fennell, slip op. at 5.
Major Burig’s Affidavit shows such a nexus. Accordingly, the Affidavit was legally
sufficient, as a matter of law, to sustain PSP’s burden.7 OOR erred in concluding
that PSP did not establish that the redacted portions of AR 6-9 are exempt from
disclosure under the public safety exemption of the RTKL.
Finally, because Major Burig’s Affidavit adequately described the
nature of the redacted information and was legally sufficient to sustain PSP’s burden,
it is not necessary to review the unredacted record in camera, as Requester urges this
7
Requester argues that it is at a significant disadvantage when challenging Major Burig’s
Affidavit because Requester cannot review the redacted portions of AR 6-9. As a result, Requester
produced publicly available policies from three other police departments that, “based on their
headings and language, seem substantially similar to AR 6-9.” Requester’s Brief at 9. Requester
argues that those policies give insight into what is likely contained in the redacted portions of AR
6-9 and none of those sections can be reasonably viewed as threatening public safety. Id. We
cannot assume that the language is, in fact, substantially similar to the redacted portions of AR 6-
9, and what other police departments do with respect to releasing their policies is irrelevant to the
present case. See Woods, 998 A.2d at 669.
12
Court to do. 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 privilege8 or the predecisional deliberative
process.9 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. As stated, Major Burig’s Affidavit sufficiently
addresses that issue.
Accordingly, for the foregoing reasons, we reverse.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
8
See, e.g., Pa. Dep’t of Educ. v. Bagwell, 114 A.3d 1113 (Pa. Cmwlth. 2015) (stating in
camera review is appropriate to assess claims of attorney-client and work-product privileges and
the predecisional deliberative exception); Office of Open Records v. Center Twp., 95 A.3d 354 (Pa.
Cmwlth. 2014) (concerning attorney-client privilege and work-product doctrine); Levy v. Senate,
34 A.3d 243 (Pa. Cmwlth. 2011) (involving in camera review by this Court to assess attorney-
client privilege).
9
See, e.g., Bagwell.
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania State Police, :
Petitioner :
:
v. :
:
American Civil Liberties :
Union of Pennsylvania, : No. 1066 C.D. 2017
Respondent :
ORDER
AND NOW, this 18th day of May, 2018 the Final Determination of the
Pennsylvania Office of Open Records dated July 7, 2017 is REVERSED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge