The Commonwealth Court has held that the Pennsylvania State Police (PSP) do not have to release the names and departments of police officers accredited by the Municipal Police Officer’s Education and Training Commission (MPOETC) because PSP does not have the ability to determine whether such officers are engaged in undercover or covert law enforcement activities.
Andrew McGill, a reporter for the Pittsburgh Post-Gazette, filed an open-records request with PSP seeking the names and departments of MPOETC-accredited police officers. PSP denied the request, alleging the disclosure of the names would endanger the personal security of the police officers and threaten public safety. PSP also alleged that responding to the request would require the release of the names of individuals performing undercover or covert law enforcement activities. The Office of Open Records issued a Final Determination that directed PSP to release the names and departments but allowed PSP to redact the names of individuals performing undercover or covert law enforcement activities.
PSP appealed the OOR’s Final Determination to the Commonwealth Court. PSP asserted that criminals and terrorists could use the list to assess the vulnerability of areas within the Commonwealth and the ability of officers to respond to an incident or an attack based on how many police officers a municipality employs. The court disagreed, finding names of police officers and the amount budgeted by a public entity for public safety are public records.
Undaunted, PSP then argued that it would have to contact every one of the 1,100 police departments in the Commonwealth to determine whether the police officers on the MPOETC-accredited list were performing undercover or covert law enforcement activities. The Commonwealth Court found this would require the PSP to “create a record” in violation of Section 705 of the RTKL and reversed the OOR’s Final Determination. The Commonwealth Court distinguished this situation from more routine acts such as performing a detailed search of the agency’s records culling data from a spreadsheet within the agency’s possession. This case, the Court announced, required obtaining information outside the possession of the PSP thus amounted to “creating” a record. Judge Leavitt dissented saying the majority was reading Section 705 too broadly and that redaction of a record does not amount to “creating” a new record.
Interestingly, the Court noted the requester could request the names of every police officer from every police department in the Commonwealth. After the individual departments redacted the names of the officers engaged in uncover or covert law enforcement, the requester could provide the list to the State Police, who would have the obligation to confirm accreditation information for every officer on the master list.
The “creation of a record” argument is frequently raised by agencies. This holding should not be read as sanctioning the denial of access to records under Section 705 when the agency can extract the information requested from records or electronic data it possesses or to which it has ready access.
Disclaimer: This blog is maintained by the members of Nauman Smith’s Media and Right-to-Know Law practice group. The members of this practice group represent both: 1) media entities, individuals and corporations seeking access to public records, and 2) local municipalities seeking to comply with the law. THIS BLOG IS NOT MEANT TO BE USED AS LEGAL ADVICE. The purpose of this blog is to provide educational material for individuals interested in Pennsylvania’s open records law, commonly referred to as the “Right-to-Know Law” or “RTKL”. The opinions expressed by the individual members of the practice group are solely their own, and do not reflect the opinions of Nauman, Smith, Shissler & Hall, LLP, or the practice group as a whole.