WHAT YOU NEED TO KNOW ABOUT THE RIGHT-TO-KNOW LAW - WHAT INFORMATION CAN YOU OBTAIN ABOUT THE IDENTITIES OF PUBLIC EMPLOYEES? Recently, the Commonwealth Court rendered a decision in an important case involving Pennsylvania’s Right-to-Know Law (“RTKL”), which requires state and local agencies to disclose public records to persons making requests for those records. The issue in the case concerned the scope of certain exemptions in the RTKL that permitted an agency to refuse to disclose particular types of records in its possession. In Pennsylvania State Police vs. McGill, 852 C.D. 2013 (Jan. 8, 2014), Andrew McGill, a reporter for the Pittsburgh Post-Gazette had requested the names of all police officers in Pennsylvania accredited by the Municipal Police Officers’ Education and Training Commission. There are over 22,000 police officers in Pennsylvania accredited by the MPOETC. The Post-Gazette’s request was made to the Pennsylvania State Police, which maintains custody of the accreditation records, pursuant to the RTKL. The state police denied the request based on the RTKL’s disclosure exemptions, such as that the disclosure of the names could result in harm to the personal security of police officers, threaten public safety, and hinder the ability of a police department to secure an arrest. The state police also invoked Section 708(b)(6)(iii) of the RTKL, which provides that “an agency may redact the name or other identifying information relating to an individual performing an undercover or covert law enforcement activity from a record.” The Post-Gazette appealed to the Office of Open Records (OOR) and argued that the state police failed to show that disclosure of the names of all MPOETC-accredited officers would be reasonably likely to result in any risk of harm. The newspaper also argued that, where disclosure would be reasonably likely to result in harm, such as in the case of names of undercover officers, the RTKL permitted the state police to redact the names of such officers from the record prior to disclosure. The OOR agreed with the Post-Gazette and ordered the state police to turn over the requested records with the names of police officers conducting undercover and covert operations redacted. The state police filed an appeal to the Commonwealth Court. Initially, the Commonwealth Court rejected an argument by the state police that the names of municipal police officers should be exempt from disclosure simply by virtue of their being police officers. The court reiterated that, under the RTKL, “[t]he only name of a public employee that cannot be released is the name of an individual, whether a police officer or not, who is engaged in undercover or covert work.” The RTKL expressly provides that the names of public employees are generally subject to disclosure. The court noted that Pennsylvania does not have “classified” sections of state or municipal budgets. The Commonwealth Court next wrestled with a thorny issue. While the state police could not refuse to release the names of all accredited police officers, the state police clearly could refuse to release some of the names because those officers were performing undercover or covert law enforcement activities. The state police, however, did not know which municipal police officers were performing undercover work; that information was in the hands of local municipal police departments. Therefore, the court noted, in order for the state police to be able to redact the names of undercover officers, it would need to contact each of the 1,100 police departments in the Commonwealth to obtain the information. Moreover, the officers performing undercover or covert duties could change from one day to the next. Section 705 of the RTKL expressly state that a government agency is not required to create a record that does not currently exist. According to the Commonwealth Court, “[b]ecause the OOR ordered the [state police] to redact the names of officers conducting undercover and covert operations, but neither the [state police] nor MPOETC have a record of which officers are performing those functions, the OOR’s Final Determination, in essence, requires the [state police] to ‘create a record’ in violation of Section 705 of the RTKL. The Commonwealth Court thus reversed the decision of the OOR. But while the court held that the state police was not required to create a record of the names of MPOETC-accredited officers not performing undercover or covert work, the court noted that a requester could still make requests to each municipal police department in the Commonwealth for the names of their non-undercover officers. The requester then could make a list of those names, give the list to the state police, which would then be required to provide the requested accreditation information. Judge Leavitt authored a strong dissent in the case. Judge Leavitt disagreed with the majority’s reasoning that the redaction of an existing document constituted the creation of a new record. She contended that, under the majority’s reasoning, “any agency may refuse to produce a public record whenever there is information it desires to redact from that record.” Judge Leavitt noted that, while it may be a burden for the state police to contact local police departments to obtain the information necessary to redact the record, that burden is not a reason, by itself, to deny access to a public record. The outcome of this case raises two interesting questions. First, is Judge Leavitt correct in arguing that the majority’s reasoning means that an agency can simply deny access to a record on the ground that there is information in the record that may be exempt from disclosure under the RTKL? Where a record contains information that is subject to disclosure and information that may be exempt, the RTKL requires the agency to disclose the non-exempt information. The agency’s options in that case are to either disclose the entire record, including the parts that may be exempted, or to redact the parts subject to exemption. To the extent that the majority suggests otherwise, its decision seems to conflict with the requirements of the RTKL. The second question is this: since the identity of undercover and covert police officers frequently changes, is there not always a danger that the names of such individuals will be disclosed? Even if a requester followed the path described by the majority, and requested the names of all non-undercover police officers from the local departments, by the time the requester provided the list to the state police, some of those previously non-undercover officers could be working undercover. Can the state police ever really be certain that they are not releasing the name of an officer performing undercover or cover work? A future case awaits the resolution of these questions. Stay tuned.
Posted on: Sat, 18 Jan 2014 22:53:59 +0000
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