For the Defense - Vol. 8, Issue 4 - 53

In so doing, the State Police invoked the public safety
exception to the RTKL, one of several exceptions that allow
agencies to refuse to produce records. While the agency has
the burden to support application of these exceptions, it does
not have to provide its reasoning unless and until its decision
is appealed. We did just that and filed an administrative
appeal to the Office of Open Records ( " OOR " ).2
Understanding our approach to the initial administrative
appeal is critical, as proper preparation and presentation
before OOR was key to our final victory in this case. OOR
appeals are reasonably streamlined and straightforward
because most of the appellants are unrepresented, and the
procedures have been created with that in mind. Generally,
OOR must issue a final decision within 30 days of an appeal's
filing date. This compressed timeline generally does not
allow staggered, adversarial briefing; instead, the parties
submit their arguments on the same day, like ships passing
in the night.
As we often do in OOR appeals, we negotiated a more
traditional briefing schedule that also gave OOR additional
time to make a final decision. This approach proved crucial,
as it gave us the opportunity to rebut in detail the unfounded
" public safety " claims made by the State Police.
In its brief, the State Police relied entirely on an affidavit
from an officer who cited his two decades of experience
and his position overseeing investigations. The affidavit
walked through the policy section by section, purporting
to explain the harm that would come from the release of
the redacted information. For example, in one section the
affidavit claimed that release would allow " [i]ndividuals with
nefarious motives " to " undermine PSP's ability to conduct an
investigation or assessment because the individual will have
knowledge of when PSP would use an open source as an
investigative tool and when it would not. " This sort of broad
concern about undermining investigations was repeated
throughout.
Responding to these sorts of claims can be an uphill battle
because the ACLU, like other requesters, had not seen the
full document and had no way of knowing what it actually
contained, including whether the purported safety threats
described in the affidavit actually matched what was in the
document. We started by looking for similar policies from
other jurisdictions that were already public, and we were
lucky to find not only some from other states, but also one
from Philadelphia. Based on the headings and unredacted
portions of the State Police policy at issue, we argued that
the text of these redacted sections was likely the same as
policies from other police departments that were publicly
available. Doing so allowed us to show that the policy was
really administrative in nature, rather than providing any
operational information that would allow criminals to evade
detection or otherwise jeopardize public safety.
Vol. 8, Issue 4 l For The Defense 53
For the Defense - Vol. 8, Issue 4

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