For the Defense - Vol. 8, Issue 4 - 54

This allowed us to respond point-by-point to the affidavit.
Rather than complain generally about the affidavit's seemingly
over-the-top claims, we parsed each of its statements, using
similar policies from other jurisdictions, as well as logical
inferences (such as our claim that making public a definition
of First Amendment protected activity could never endanger
public safety, since that activity was by definition lawful). In
the aggregate, this allowed us to show that the affidavit was
overstating the risk in enough places that we hoped it would
sow sufficient doubt about the affidavit's reasonableness for
the finder of fact.
The final component of our approach was to ask that
OOR review the unredacted document in camera. Without
having seen the policy's text, we could only raise doubts
and hope that they resonated with the OOR appeals officer
when compared to the policy's actual language. The appeals
officer apparently believed we had raised enough colorable
questions that he ordered in camera review (the State Police
did not object).
In its final decision, OOR did precisely what we hoped
for, concluding that " the threats outlined in PSP's affidavit
simply do not match the text of the policy. " 3
The decision,
like our submission, went section-by-section through the
affidavit, reasoning that the actual text set forth methods
that were already " widespread public knowledge " and any
prohibitions on surveillance were " sufficiently vague and
limited so that no individual outside of PSP could manipulate
them to the detriment of public safety. " 4
It concluded that
" none of the redactions . . . contain information that a third
party could plausibly use " to threaten public safety, and the
record should be released.5
It would have been easy for OOR to defer to the supposed
expertise of the police officer, without a thoughtful
examination. And there are many administrative and court
opinions that do just that. But, by providing OOR with specific
critiques of the affidavit's arguments based on comparable
evidence, we successfully convinced OOR that the affidavit's
concerns were not substantiated.
The Commonwealth Court Refused to Review the
Policy In Camera
The State Police appealed to the Commonwealth Court,
arguing that OOR improperly substituted its own judgment
over the supposed expertise of law enforcement. The agency's
position was straightforward and potentially far-reaching: the
OOR should have accepted the affidavit on its face as setting
forth sufficient threats to justify withholding the social media
monitoring policy under the public safety exemption, and
OOR's review of the actual text of the documents in camera
was essentially irrelevant. The Commonwealth Court agreed,
reasoning that the affidavit adequately " connected the
nature of AR 6-9 to the reasonable likelihood that disclosure
would threaten public safety and impair PSP's public safety
function. " 6
It reversed OOR.
54 For The Defense l Vol. 8, Issue 4
However, in so doing, the Commonwealth Court refused
to examine the document in camera. According to the
court, the actual text of the policy did not matter when
deciding whether its release would cause harm. The court
wrote that " the actual words on the page are not at issue;
rather, the issue is whether disclosure of those words 'would
be " reasonably likely " to threaten public safety or a public
protection activity.' " 7
To the court, the affidavit " sufficiently
addresses that issue. " 8
Thus, the Commonwealth Court took the State Police's
claims at face value, without any way for the ACLU to rebut
them, and without even looking at the same document
that OOR decided did not match those supposed harms. It
was a remarkable conclusion, which functionally made it
impossible for requesters to push back against all but the
most threadbare agency affidavits.
In light of this significant harm to public transparency, we
obtained co-counsel assistance from Alicia Hickok and Mark
Taticchi at what is now Faegre, Drinker, Biddle & Reath LLP.
Together, we convinced the Pennsylvania Supreme Court to
review this issue. In its 2020 ruling, the Court rejected the
approach taken by the Commonwealth Court, explaining that
" courts should not defer so utterly " to law enforcement that the
discretion of whether to release a document is effectively left up
to the agency.9
The Court concluded that the
That approach " diminishes the burden that the
General Assembly imposed upon agencies seeking to withhold
documents from public scrutiny. " 10
Commonwealth Court abuses its discretion when it " declines
to review a challenged document in camera based upon the
supposition that an agency affiant has accurately assessed the
likely effect of a given disclosure . . . especially where OOR has
conducted such a review and found the affidavit wanting. " 11
Accordingly, it remanded the matter, with instructions to compare
the affidavit to the actual text of the policy.
In Camera Review Confirmed That the Policy Must Be
Released
With the Supreme Court's ruling that the Commonwealth
Court cannot refuse to review a record in camera after OOR
has, the Commonwealth Court conducted the section-bysection
review of the policy that it should have done initially.
It released its opinion in 2021, concluding that " the affidavit
is insufficient to connect the text of AR 6-9 with the risks
he articulates. " 12
In other words, although three years earlier
the Commonwealth Court believed that the affidavit was
sufficient on its face to withhold the policy, the court now
concluded that the affidavit-when read in conjunction with
the actual text of the policy-was insufficient to meet the
State Police's burden.
Yet, despite acknowledging that the RTKL places the burden
on the State Police to justify withholding the record, and
despite agreeing with OOR that the affidavit did not meet
this burden, the Commonwealth Court did not order release
of the document at this stage. Instead, it remanded to OOR
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