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 have now appealed to the Pennsylvania Supreme Court and are asking the Court to require that OOR and the Commonwealth Court take a critical look at the actual text of the policy and use their judgment to determine what parts—if any—of the policy actually need to stay secret to protect public safety.