Pennsylvania Supreme Court orders state police to disclose social media monitoring policy – JURIST

The Supreme Court of Pennsylvania ruled Tuesday that the state police (PSP) must disclose its social media monitoring policy to the American Civil Liberties Union (ACLU) of Pennsylvania under the state’s right-to-know law (RTKL). The case is an appeal from the Commonwealth Court of Pennslyvania.

Justice David N. Wecht authored the opinion of the court. Wecht concluded that the Commonwealth Court abused its discretion when it did not order PSP to produce an unredacted version of its social media policy. Wecht acknowledged that “various provisions of the RTKL demonstrate an intent for expedited determination of RTKL requests.” Additionally, Wecht noted that this lawsuit is already six years deep, and the Commonwealth Court’s remand would only continue to delay the proceedings and, ultimately, a resolution to the request. The majority concluded that the Commonwealth Court’s “unsubstantiated remand significantly undercuts the statute’s aim.” Lastly, Wecht found that PSP did not carry its burden to demonstrate that an exception to RTKL applied.

The lawsuit began when the ACLU of Pennsylvania submitted an RTKL request to the state police seeking a copy of its regulation of how it monitors social media. Under the law, any “record in the possession of a Commonwealth agency or local agency shall be presumed to be a public record” unless an exception applies. PSP provided the ACLU with a redacted copy of its regulation and argued that the public safety exception applied. After the Office of Open Records concluded that the exception did not apply, PSP appealed, and the Commonwealth Court reversed. The Supreme Court ordered PSP to provide an unredacted copy to the ACLU.

In response to the ruling, senior staff attorney at the ACLU of Pennslyvania Andrew Christy stated:

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. 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. We applaud the state Supreme Court for shining a light on this policy.

Justice Sallie Updyke Mundy dissented. Mundy argued that the Commonwealth Court did not abuse its discretion. Mundy asserted that the majority errored by “focusing exclusively on expediency” and not giving “effect to the statute as a whole.” Additionally, Mundy concluded that the law is “designed to provide expedient transparency of non-exempt records.”