Court to rule on secrecy of state police social media policy

(Harrisburg) — Pennsylvania’s highest court has agreed to consider whether state police should have to disclose more details about how they use information from social media to investigate crimes and make their own hiring decisions.

The Supreme Court on Monday announced it will hear an appeal by the state chapter of the American Civil Liberties Union of a May decision by a Commonwealth Court that upheld the police agency’s decision to black out large sections of the document they provided.

The justices will review whether the lower court should have privately examined the redacted portions of the state police’s social media monitoring policy and other evidence before overturning the Office of Open Records’ order granting access to the ACLU.

They will also consider whether the Commonwealth Court panel should have relied heavily in making the decision on an affidavit by the state police’s criminal investigations director.

A state police spokesman declined to comment, citing ongoing litigation.

The Pennsylvania NewsMedia Association, an industry group, filed a brief urging the high court to take the appeal.

“The actual disputed records are the best evidence in an open records appeal, and they provide the most relevant evidence to dispute or confirm affidavits provided by government agencies,” the association argued to the court.

Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association, said Commonwealth Court “essentially said, ‘We don’t have to look at the actual records in this case, we’ll just take PSP’s word for it.’ That’s troubling from a public access perspective because it takes the best evidence in a case — the actual records — and removes them from the decision-making process, relying instead on indirect evidence and leaving the public without any real opportunity to challenge.”

The state ACLU asked for the police agency’s regulation that covers policies and procedures for its troopers when using social media monitoring software. The ACLU appealed after getting a copy of the policy with multiple sections blacked out, but an Office of Open Records appeals officer examined the redactions and concluded the withheld information was not reasonably likely to jeopardize public safety.

State Police Maj. Douglas J. Burig, director of the Bureau of Criminal Investigation, argued in a sworn affidavit that making public the redacted details “would jeopardize PSP’s ability to conduct criminal investigations and other law enforcement activities it engages in to protect the public.”

Redacted sections addressed how and when troopers should use open sources during investigations, what approval they need, when they should go undercover and use an online alias, and how to verify the information they collect.

The agency also blacked out the entire section on using social media for employment background investigations.

Commonwealth Court ruled that Burig’s affidavit about the potential harm from making the policy public was not mere speculation or conjecture.

“Where, as here, the affiant bases his conclusion that such harm is reasonably likely on his extensive experience, such conclusion is not speculative or conclusory,” wrote Judge Christine Fizzano Cannon.

Commonwealth Court, she said, has generally used the private document reviews in cases that pertain to attorney-client privilege or raise questions about whether withholding records fits the broad “predecisional deliberation” exception that allows agencies to withhold certain records.

“Here, the actual words on the page are not at issue; rather, the issue is whether disclosure of those words ‘would be “reasonably likely” to threaten public safety or a public protection activity,’” Fizzano Cannon wrote. “As stated, Maj. Burig’s affidavit sufficiently addresses that issue.”