The ACLU of Pennsylvania has sued the Pennsylvania State Police (“PSP”) over its refusal to publicly release its policy governing when state troopers can spy on Pennsylvanians’ social media accounts. After we submitted the March 2017 request for the policy, PSP responded with a nine-page document that was heavily redacted—several pages were completed blacked out. The Office of Open Records (“OOR”) reviewed the unredacted policy in camera (a procedure to review it privately and not as part of the public record) and concluded that there would be no risk to public safety to release the document. Although PSP claimed in an affidavit that release would allow criminals to evade surveillance, OOR concluded that “the threats outlined in PSP’s affidavit simply do not match the text of the policy.”
PSP appealed to the Commonwealth Court, which reversed OOR, concluding that OOR should not look beyond the text of the affidavit. In other words, OOR should simply defer to law enforcement’s conclusions without any independent evaluation. The Commonwealth Court refused to review the policy in camera in the way that OOR did.
We appealed to the Pennsylvania Supreme Court, and, on June 16, 2020, the Supreme Court ruled that the Commonwealth Court erred in deferring to PSP's conclusion without reviewing the policy in camera. The case now returns to the Commonwealth Court, which must review the policy and make its own determination about whether or not releasing the policy is a threat to public safety. The Commonwealth Court determined that the PSP had not met its burden to withhold the policy, but the court nevertheless ordered that they be given another opportunity to meet their burden and ordered the case remanded by OOR for additional fact-finding.
We again appealed to the Pennsylvania Supreme Court, which for the second time ruled in our favor. The Court explained that the burden to withhold the record was PSP's, and since it had not met that burden to show a threat to public safety, the policy must be released.
