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August 23, 2023

Pennsylvania State Police must disclose how it monitors social media, court rules

The ACLU hailed the ruling as 'a win for transparency.' The organization will get to review an unredacted version of the policy six years after requesting it

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Supreme Court State Police Frank Piscani/Imagn Content Services, LLC

The Pennsylvania State Police must disclose its policy for monitoring social media to the American Civil Liberties Union of Pennsylvania, the state Supreme Court ruled Tuesday.

The Pennsylvania State Police cannot hide from the public its policy for social media monitoring, the state Supreme Court ruled. 

The 4-2 decision, issued Tuesday, allows the American Civil Liberties Union of Pennsylvania to review an unredacted version of the policy six years after it requested it. The ruling potentially brings a long legal battle that included two appeals to the state Supreme Court to a close. 

"Today's ruling is a win for transparency and the public's right to hold government accountable through the use of the state's open records law," said Andrew Christy, a senior staff attorney at the ACLU of Pennsylvania. "It is dangerous for a powerful government entity like the state police to operate in darkness, especially when they are monitoring protected free speech by everyday Pennsylvanians without the public knowing how and why it engages in that surveillance." 

State Police officials said that they are still reviewing the Supreme Court's opinion. 

All four of the Democratic justices supported the majority decision; the two Republican justices dissented, the Associated Press reported. 

The ACLU requested the policy through the state's Right To Know Law in March 2017. It received a heavily-redacted version of the nine-page document, with several pages completely blacked out. At the time, the state police cited the law's "public safety exception," which allows agencies to deny requests for information that would jeopardize public safety. State police argued that the social media monitoring policy would undermine the effectiveness of its investigations. 

The ACLU filed an appeal to the Office of Open Records, which examined an unredacted version of the policy. The office found that the arguments made by state police were not supported by the policy's text, which it described as internal, administrative procedures that would not alter a trooper's ability to investigate. 

That decision was overruled by a panel of three Republican Commonwealth Court judges, which found that the state police needed to show the public safety risk posed by disclosing the full policy. But the court also ruled that the analysis given by Major Douglas Burig, the agency's head of criminal investigations, met that requirement. 

The ACLU later appealed that ruling to the state Supreme Court, which found that the lower court had erred in its decision because it had not reviewed the unredacted policy. 

After examining it, the Commonwealth Court found that it could not determine whether the policy's disclosure would threaten public safety, but that careful consideration of the record was important in "police matters." It sent the case back to the Office of Open Records, prompting another appeal from the ACLU to the Supreme Court. 

In this appeal, the ACLU argued that law enforcement agencies are not afforded special status in responding to records requests and that "sending the case back to Square One" would encourage agencies to use vague statements to prolong legal battles over open records requests. 

In Tuesday's ruling, the Supreme Court ruled the Commonwealth Court should not have given state police a new opportunity to argue the risks of disclosing the policy by sending the case back to the Office of Open Records. In the opinion, Justice David Wecht wrote that "we must, and we do, bring this six-year quest for transparency to an end."

But not all of the justices viewed the case in that light. 

"I find the majority's push for expediency particularly troubling in a case, as here, where the agency raises a credible claim under the public safety exception," Justice Sallie Mundy wrote in her dissent. "Where the potential risk is jeopardizing public safety, I would err on the side of caution and favor careful consideration rather than expediency."