Pennsylvania State Police v. McGill

DISSENTING OPINION

by Judge LEAVITT.

The Pennsylvania State Police has been requested to produce a list of the police officers in the Commonwealth who have been accredited by the Municipal Police Officers’ Education and Training Commission. The State Police has this information and can produce it with the push of a button. For this reason, the Office of Open Records (OOR) ordered the State Police to produce this list and, if it so desired, redact the names of those police officers working undercover. The majority reverses because it concludes that OOR’s order required the State Police to create a new document. I disagree that an agency’s redaction of an existing document is, as a matter of law, the creation of a document. If that is so, then any agency may refuse to produce a public record whenever there is information it desires to redact from that record. For this reason, I respectfully dissent.

The Right-to-Know Law1 relieves an agency of the burden of having to create a *483new record in order to respond to a request. Specifically, Section 705 states as follows:

When responding to a request for access, an agency shall not be required to create a record which does not currently exist or to compile, maintain, format or organize a record in a manner in which the agency does not currently compile, maintain, format or organize the record.

65 P.S. § 67.705. In this case, there is no dispute that the State Police “currently maintains” a list of all accredited police officers.

The Right-to-Know Law also establishes that the name of each government employee is subject to disclosure upon request. Section 708(b)(6)(ii) states as follows:

Nothing in this paragraph shall preclude the release of the name, position, salary, actual compensation or other payments or expenses, employment contract, employment-related contract or agreement and length of service of a public official or an agency employee.

65 P.S. § 67.708(b)(6)(ii) (emphasis added). Section 708(b)(6)(ii) leaves no doubt that the name of every police officer in the Commonwealth is public information that must be released upon request.

To be sure, an agency is not required to release the names of employees or other individuals, who may or may not be police officers, if they “are performing an undercover or covert law enforcement activity.” Section 708(b)(6)(iii) of the Right-to-Know Law states, in relevant part, as follows:

An agency may redact the name or other identifying information relating to an individual performing an undercover or covert law enforcement activity from a record.

65 P.S. § 67.708(b)(6)(iii). The majority reads Section 708(b)(6)(iii) as establishing a mandate that the agency never disclose the name of an individual “performing an undercover or covert law enforcement activity.” This expansive reading is not consistent with the actual language of Section 708(b)(6)(iii), which merely permits the redaction of the name of an individual so engaged. Section 708(b)(6)(iii) does not require redaction, and there are reasons why an agency might choose not to redact the true name of an individual engaged in “undercover or covert” law enforcement. Nor does Section 708(b)(6)(iii) prohibit disclosure. In short, Section 708(b)(6)(iii) does not justify the State Police’s refusal to provide the list of police officers certified by the Municipal Police Officers’ Education and Training Commission or to undertake a redaction where appropriate.

The State Police has not been asked to create a new record but to provide an existing public record. The fact that the State Police may wish to exercise its discretion to redact the record does not relieve it of its duty to provide the record.

There are many situations where an agency may not disclose information contained in a requested public record. The most common is where the agency wants to protect the personal security of an employee. Section 708(b)(l)(ii) of the Right-to-Know Law states, in relevant part, as follows:

(b) Except as provided in subsections (c) and (d), the following are exempt from access by a requester under this act:
(1) A record, the disclosure of which:
* * *
(ii) would be reasonably likely to result in a substantial and demonstrable risk of physical harm to or the personal security of an individual.

65 P.S. § 67.708(b)(1)(ii). However, the fact that a record is exempt from disclo*484sure does not lead automatically to a denial of a record request. Rather, the agency must consider a redaction of the exempt information. Section 706 states:

If an agency determines that a public record, legislative record or financial record contains information which is subject to access as well as information which is not subject to access, the agency’s response shall grant access to the information which is subject to access and deny access to the information which is not subject to access. If the information which is not subject to access is an integral part of the public record, legislative record or financial record and cannot be separated, the agency shall redact from the record the information which is not subject to access, and the response shall grant access to the information which is subject to access. The agency may not deny access to the record if the information which is not subject to access is able to be redacted. Information which an agency redacts in accordance with this subsection shall be deemed a denial under Chapter 9.

65 P.S. § 67.706 (emphasis added). Here the list of certified police officers includes “information which is subject to access as well as information which is not subject to access.” Id. The State Police is required to “grant access to the information subject to access.” Id.

An agency never knows, upon receiving a request for a public record, whether the request will affect the personal security of an employee or third party. It will always have to seek out this information from others, and this is a burden. However, there is no exemption in the Righ1>-to-Know Law from the duty to disclose a public record because of the burden of undertaking a redaction to protect the personal security of an individual. Redaction is a vehicle that advances greater disclosure, not less. The State Police may charge the requester for its costs in seeking this information from police departments that may, or may not, want the names of their undercover police officers redacted. Section 1307(g) of the Right-to-Know Law provides that an agency may impose fees on a requestor if the fees are provided for by statute or the agency “necessarily incurs costs for complying with the request” and the fee is reasonable. 65 P.S. § 67.1307(g).

For these reasons, I would affirm the final determination of the Office of Open Records, which gave the State Police the opportunity to redact the names of undercover police officers after consulting with local police departments.2

. Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.

. Here, the burden of contacting police departments is not clear. The Municipal Police Officers’ Education and Training Commission is in constant communication with police departments around the Commonwealth. It must have the ability to contact electronically its contacts at these departments.