Appeals court shields police documents from public access

A Pennsylvania state appeals court ruled Thursday that incident reports filed by state police officers are not public records, citing an exemption in the state’s Right to Know Law that protects from public disclosure “a record of an agency relating to or resulting in a criminal investigation.”

The court’s 6-1 ruling reversed an earlier decision by the state Office of Open Records that such documents should be made public.

In February of 2009, the Potter Leader-Enterprise of Coudersport, Pa., submitted an open records request seeking an incident report involving an altercation at a private residence. The state police initially denied the request.

Donald Gilliland, who at the time was the managing editor of the Leader-Enterprise, appealed the police department’s decision to the state Office of Open Records, who ruled in Gilliland’s favor. The office stated that “because an incident report is equivalent to a police blotter, and police blotters are excluded from the criminal investigative records exemption … the incident report was a public record.” Under the law, a police blotter is defined as a “chronological listing of arrests.”

The state police then petitioned the appeals court to review the Office of Open Records’ decision. The court agreed with the state police that the incident report did not qualify as a police blotter and was therefore exempt from disclosure. Instead the court held the record to be “a description of an investigation by the [state police] into a complaint of criminal activity.”

In the dissenting opinion, Judge Dan Pellegrini argued that incident reports are not “criminal investigative material,” a necessary qualification in order for a record to be exempt from a open records request. He also argued that the state police did not uphold its burden under the law to prove why the incident report should be considered “investigative material.”

“The [state police] provided no guidance as to why the report qualified as investigative material or what specific information in the report was not subject to public access,” he wrote.

“It would be an absurd result if the new [Right to Know Law], which was ‘designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials, and make public officials accountable for their actions,’ instead restricted public access to these readily available documents by now making them exempt from disclosure,” wrote Pellegrini.

Gilliland, who now writes for the Harrisburg Patriot-News, says this ruling has significant consequences for reporters and the public.

“There’s a pretty significant likelihood that the Pennsylvania State Police will now have the cover to, if they choose, withhold the names of adults that they have arrested.” In such a case, reporters would be forced to “scramble around in the judiciary trying to hunt down a case according to circumstances rather than names,” which is an extremely difficult task, Gilliland said.

“It’s practically impossible. You have to hope the district judge is disposed to helping the media, but that’s not always the case,” he said.

An additional problem is that small, rural newspapers like the Leader-Enterprise don’t have the resources to hire attorneys to fight these open records cases, Gilliland said, adding that he had to write his own brief for the case in the Commonwealth Court.

“Reporters at small papers are at an extraordinary disadvantage under the new open records law in Pennsylvania,” he said, a disadvantage that also applies to regular citizens. “Unless you have the money to hire attorneys to go to Harrisburg and argue on your behalf, you’re stuck. You have to do it yourself, and all the machinery of the state of Pennsylvania is working against you.”

Gilliland said he did not know whether the Office of Open Records would appeal the court’s decision but said he “would be surprised if they did,” due to the office’s lack of resources.