Pennsylvania State Police v. McGill
Commonwealth Court of Pennsylvania
No. 852 C.D. 2013
January 8, 2014
The Commonwealth Court ruled that the Pennsylvania State Police did not need to disclose a list of all of the state’s accredited police officers because it could not determine which of those officers is working undercover without contacting more than 1,100 municipal departments to compile that information. Therefore, the Court held that the requested information is not subject to disclosure under the Right to Know Law.
Andrew McGill, a reporter for the Pittsburgh Post-Gazette, submitted a Right to Know Law request to the Pennsylvania State Police seeking a list of all officers accredited by the Municipal Police Officer Education and Training Commission. The PSP denied the request, claiming the information was exempt under the RTKL’s personal safety and public safety exceptions and its exception covering the identity of undercover officers.
McGill appealed to the Office of Open Records. The OOR concluded that the PSP failed to meet its burden of proof and ordered it to disclose the list after redacting the names of officers performing undercover work. The PSP appealed to the Commonwealth Court.
Commonwealth Court Decision
The Commonwealth Court rejected the PSP’s arguments concerning the purported threat to the officers’ safety and the public’s safety from releasing the list. The court stressed that the PSP had not shown a “particularized concern about the personal security of an individual” and further emphasized that there was no harm to releasing a list showing how many officers had been accredited or where they work, as “the General Assembly has stated that the amount spent by public bodies is always public.”
The court nevertheless ruled that the PSP could withhold the list of accredited officers.
Although records normally should not be withheld simply because they include some information that is not public, the PSP could not determine by itself which of the officers on the list perform undercover duties and therefore could not determine which information to redact under the RTKL provision permitting agencies to withhold the identities of undercover officers.
As the court explained, the PSP does not have any record in its possession that shows which officers are working undercover. As a result, to protect the identities of undercover offices, “the PSP would be required to coordinate with more than 1,100 municipal law enforcement agencies throughout the Commonwealth, as only those local agencies maintain information relating to which officers are performing undercover and/or covert operations.”
In essence, the court concluded, the PSP would need to create a new record to comply with the request. Because the RTKL does not require agencies to create a record that does not already exist, the court determined that the PSP did not need to fulfill the request.