Prison transfer records protected by personal security exemption

Carey v. Pennsylvania Department of Corrections
Commonwealth Court of Pennsylvania
No. 1348 C.D. 2012

January 24, 2013

The Commonwealth Court determined that, in the case of inmate transfer records, Department of Corrections employees’ identities were exempt under the Right to Know Law’s personal security exemption. The court also held that the department had not met its burden of establishing that records about the inmates and the logistics of the transfer were exempt under the public safety exemption, but permitted the Department to supplement the record to provide additional evidence within 60 days.


Douglas Carey made a Right to Know Law request of the Pennsylvania Department of Corrections seeking records related to the transfer of inmates from prisons in Pennsylvania to a prison in Michigan. The Department of Corrections denied the request in full, claiming that the request was not sufficiently specific and citing several substantive exceptions of the Right to Know Law.

Carey appealed to the Office of Open Records. The OOR ruled that the request was sufficiently specific, but denied access to the records based on the public safety exemption of the RTKL. Carey appealed to the Commonwealth Court.

Commonwealth Court Decision

The court first affirmed the OOR’s decision related to the specificity of the request, stating that Carey’s requests were sufficiently specific because they specified a subject matter, time frame, and a discrete group of documents. The court then went through the relevant exemptions one-by-one.

The court first addressed the department’s argument that the some of the requested records were not public under the personal security exemption.

Here, “an agency must show: (1) a ‘reasonable likelihood’ of (2) ‘substantial and demonstrable risk’ to an individual’s security if the information sought is not protected.”

Because the request sought the identities of the DOC employees who authorized the transfers, the court stated that the exemption applies. The court felt that the personal safety of those who transferred inmates against their will might be in danger should their identities be disclosed.

The court next addressed the public safety exemption.

For this, disclosure must “be reasonably likely to jeopardize or threaten public safety or preparedness” to gain the protection of the exemption. To make its case, the Department of Corrections submitted the affidavit of one of its employees.

According to the court, the affidavit included conclusory statements and speculation, offering very little by way of substantive testimony. The court said, “An affidavit that does nothing more than state that, based on the affiant’s professional experience, the disclosure of the information ‘would create a substantial risk of physical harm’ for the agency and the public is insufficient.”

The court held that the Department of Corrections did not differentiate the requests, provide a link from the information in the records to a threat to public safety, or explain how disclosure of records might impair future inmate transfers.

Nevertheless, the court explained, “when security-related exceptions are asserted in the police or prison context, and responsive records implicate valid security concerns, and an agency’s proof is insufficient to discern the contents of responsive records, seeking additional evidence may be appropriate.”

As such, the court directed the Department of Corrections to provide additional evidence to supplement the affidavit within 60 days — at which time the court would make a ruling on the public safety exemption.

The court found no merit in the department’s other grounds for denying the requests (the noncriminal investigation exemption and the predecisional deliberation exemption)

January 24, 2013 – Commonwealth Court Opinion – No. 1348 C.D. 2012