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Pennsylvania State Police v. McGill

Commonwealth Court of Pennsylvania

January 8, 2014

Pennsylvania State Police and The Municipal Police Officers' Education and Training Commission, Petitioners
v.
Andrew McGill and The Pittsburgh Post-Gazette, Respondents

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge

OPINION

DAN PELLEGRINI, President Judge

The Pennsylvania State Police (PSP) and Municipal Police Officers' Education and Training Commission (MPOETC) appeal a determination of the Office of Open Records (OOR) ordering the PSP to disclose to Andrew McGill (McGill) and the Pittsburgh Post-Gazette (collectively, Requesters) the names of all police officers accredited by the MPOETC and their departments, but with the names of officers conducting undercover and covert operations redacted. For the reasons that follow, we reverse the OOR's Final Determination.

I.

A.

On February 11, 2013, McGill, on behalf of the Pittsburgh Post-Gazette, submitted a request to the PSP under the Right-to-Know Law (RTKL)[1] seeking "[a]ny list, spreadsheet or database listing officers accredited by MPOETC and their departments." (Reproduced Record (R.R.) at 10). After invoking a 30-day extension to respond pursuant to Section 902 of the RTKL, 65 P.S. §67.902, the PSP denied the request, contending that disclosure of the names may result in harm to the personal security of police officers, threaten public safety, and hinder the ability of an agency to secure an arrest.[2] The PSP also cited Section 708(b)(6)(iii) of the RTKL, which provides that "[a]n agency may redact the name or other identifying information relating to an individual performing an undercover or covert law enforcement activity from a record." 65 P.S. §67.708(b)(6)(iii).

B.

Requesters appealed to the OOR, arguing that the exemptions cited by the PSP are inapplicable because the PSP failed to prove that disclosure of the names of all MPOETC-accredited officers would be reasonably likely to result in any risk of harm and, to the extent disclosure of the names would compromise undercover activities, the PSP could redact the names of officers conducting those activities. In support of its denial, the PSP provided a position statement, along with the affidavits of William Rozier, the PSP's Open Records Officer, and Major Joseph Elias (Major Elias), the MPOETC's Executive Director.

Major Elias' affidavit provides, in relevant part, that there are currently over 1, 100 municipal law enforcement agencies employing over 22, 000 officers in the Commonwealth which are under the MPOETC's jurisdiction; that the MPOETC has no knowledge of or ability to determine each individual officer's working capacity or duties; and, therefore, release of the list of all officers certified by the MPOETC "will inevitably provide the names of law enforcement officers performing an undercover or covert law enforcement activity." (R.R. at 21).

Major Elias opined that such disclosure would be reasonably likely to result in a substantial and demonstrable risk of physical harm to the personal security of those officers and any individuals assisting them; hinder arrests and prosecutions by subverting the ability of municipal law enforcement agencies to protect the identity of their undercover or covert officers; and create safety risks for all officers and facilities in the Commonwealth "because it will potentially provide a reference for criminals and even terrorists to assess the vulnerability of areas within the Commonwealth and/or the ability of officers to respond to an incident or attack." (Id. at 22).

The OOR concluded that the PSP failed to meet its burden of proving that the requested record was exempt from disclosure due to any public safety or personal security exemptions set forth in Sections 708(b)(1)(ii), (2), (3), (16)(vi)(D) and (16)(vi)(E). Specifically, the OOR found that the PSP failed to prove the existence of any "unique concerns and security risks" associated with the release of officers' names; provide evidence demonstrating that disclosure of that information would be reasonably likely to result in harm; or show that information regarding the names and employers of municipal law enforcement officers is a record of an agency relating to or resulting in a criminal investigation. (OOR's April 22, 2013 Final Determination at 6-8). However, relying on Major Elias' assertion that the requested list would inevitably contain the names of officers performing undercover and covert operations, the OOR held that the PSP may redact the names of those individuals from the requested record pursuant to Section 708(b)(6)(iii). Accordingly, the OOR held that the PSP "is required to provide the requested record, with the names of municipal police officers conducting undercover and covert operations redacted, to the Requester[s] within thirty (30) days." (Id. at 8). This appeal by the PSP followed.[3]

II.

A.

Before we address the reasons that the PSP contends the OOR erred in stating that it had the obligation to provide a redacted list of all MPOETC-accredited police officers, we must reiterate that under the RTKL, all records in the possession of an agency are presumed "public" unless they are: (1) exempted by Section 708 of the RTKL; (2) protected by privilege; or (3) exempted "under any other Federal or State law or regulation or judicial order or decree." Section 305 of the RTKL, 65 P.S. §67.305; Office of Governor v. Scolforo, 65 A.3d 1095, 1100 (Pa. Cmwlth. 2013). The agency bears the burden of proving that a record is exempt from public access. Section 708(a)(1) of the RTKL, 65 P.S. §67.708(a)(1). We have also held that exemptions from disclosure must be narrowly construed due to the remedial nature of the RTKL, which 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. Scolforo, 65 A.3d at 1100.

Regarding the issues that are before us in this appeal, Section 708(b)(6) of the RTKL sets forth what personal information of public officials and employees is exempt from disclosure:

(i) The following personal identification information:
(A) A record containing all or part of a person's Social Security number; driver's license number; personal financial information; home, cellular or personal telephone numbers; personal e-mail addresses; employee ...

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