American Civil Liberties Union of Pennsylvania v. Pennsylvania State Police

Court: Pennsylvania Supreme Court

Date Filed: June 9, 2022

Update: On Aug. 22, 2023, the Pennsylvania Supreme Court ruled in favor of the ACLU and remanded the case to the Commonwealth Court so that it could order the Pennsylvania State Police to turn over an unredacted copy of the requested social media policy.

Background: In 2017, the American Civil Liberties Union of Pennsylvania submitted a request to the Pennsylvania State Police under the state’s Right to Know Law seeking the agency’s policy on investigating social media posts. The State Police produced a heavily redacted document, claiming the redactions were necessary to protect public safety. The ACLU then challenged the redactions in an appeal to the Office of Open Records.

During briefing with the OOR, the State Police submitted an affidavit of the director of the Bureau of Criminal Investigation describing the State Police’s view on why each segment of the requested record was exempt from disclosure. After considering the affidavit and privately reviewing the requested record, the OOR determined that the State Police failed to justify its withholdings and ordered the release of the unredacted document.

The State Police appealed to the Commonwealth Court, which reversed the OOR’s decision. The Commonwealth Court determined that the State Police sufficiently established that the release of the records may cause harm to the public, even though the court did not review the actual record in question, despite being asked to do so by the ACLU.

The ACLU appealed to the Pennsylvania Supreme Court, which held that the lower court erred in ruling in favor of the State Police without reviewing the requested record. The state Supreme Court kicked the case back to the lower court for further proceedings. The Commonwealth Court then found that the State Police’s affidavit did not establish that disclosure would harm public safety or preparedness, but that the court could not render a decision based on the record before it and sent the case back down to the OOR.

The ACLU then asked the state Supreme Court to step in again, arguing that the Commonwealth Court abused its discretion by returning the case to the OOR and further delaying access to the requested record.

Our Position: The state Supreme Court should reverse the lower court’s decision and grant the ACLU of Pennsylvania access to the record the organization requested.

• The Commonwealth Court’s order remanding the case for further review by the OOR is antithetical to the Right to Know Law’s plain text, which requires prompt disclosure of public records.
• Press and public access to law enforcement records, including records on social media surveillance, is necessary for government accountability.

Quote: “[T]he swift and efficient determination of public records requests is especially important in the law enforcement context, where public records are essential to facilitate public understanding and oversight of police conduct, promote confidence in the criminal justice system, and spur changes in law and policy when necessary. Police do not perform their duties in the community under a cloak of absolute secrecy, and the RTKL must be construed in a manner that recognizes the critical and statutorily guaranteed role that timely public access plays in the proper function of law enforcement agencies and the criminal justice system as a whole.”