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Court: Pa. State Police must release moonlighting records

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  1. Freedom of Information
The Pennsylvania State Police must release records sought by the Associated Press about work its employees perform while off duty,…

The Pennsylvania State Police must release records sought by the Associated Press about work its employees perform while off duty, but social security numbers, home addresses, and the times and places of the off-duty work could be redacted from the released records, the Commonwealth Court of Pennsylvania ruled this week.

On April 16, 2010, Associated Press reporter Mark Scolforo submitted a request under Pennsylvania’s Right-to-Know Law to the state police for supplementary employment requests of current employees made since Jan. 1, 2005, along with any agency responses, decisions and records related to them. "The idea to request [these documents] came up in the context of Ben Roethlisberger's legal issues in Georgia," Scolforo said. After news broke that the Pittsburgh Steelers' quarterback was in the company of two off-duty Pennsylvania state police officers the night he was accused of sexually assaulting a woman at a Georgia nightclub, Scolforo requested copies of police officer supplementary employment requests. Roethlisberger was not charged with a crime.

The state police denied Scolforo's request on the basis that the records were fully exempt from disclosure pursuant to the Right-to-Know Law's Section 708(b)(10)(i)(A), which says that records that reflect internal, pre-decisional deliberations are exempt, and Section 708(b)(17), which says a agency record related to noncriminal investigations is exempt. The police also claimed that, at the least, "physical harm and personal identifier exemptions require redaction of employee home addresses, the location of the employment, the usual work start and end times and all other personal security or identifying information."

Scolforo appealed the denial to the Pennsylvania Office of Open Records. The office concluded that the state police could not shield the supplementary employment records under Section 708(b)(10) because the state police failed to prove the records were deliberative. The office also concluded that the state police cannot shield the supplemental employment records under Section 708(b)(17) because submission of a request to engage in supplemental employment triggers only routine reviews, rather than investigations. The office directed the state police to supply the records and any supporting documents with the exception of correspondence, internal memoranda of supervisors, social security numbers of employees and home addresses of the law enforcement officers. Finally, the office concluded that the state police failed to establish that the requested records could not be redacted and noted that all the records requested are related to law enforcement personnel.

The Pennsylvania State Troopers Association appealed the office’s decision to the Pennsylvania Commonwealth Court, which has the power to independently review Office of Open Records orders and may substitute its findings of fact for those of the agency. The association argued that the records should not be disclosed pursuant to 708(b)(1)(ii), which says records are exempt from access if their disclosure "would be reasonably likely to result in a substantial and demonstrable risk of physical harm to or the personal security of an individual." To support this assertion, the state police and the State Troopers Association submitted affidavits from high ranking employees inside their respective organizations, attesting that officers are often without firearms or body armor while engaged in supplementary employment, and noted that knowledge of these officers' off-duty location and schedule would likely make them vulnerable to attacks.

The State Troopers Association also argued that the material documents cannot be redacted because personal identifiers permeate the supplementary employment form, thus the forms are exempt from disclosure under 708(b)(6), which says "a record containing all or part of a person's Social Security number, driver's license number, personal financial information, home, cellular or personal telephone numbers, personal e-mail addresses, employee number or other confidential personal identification" and the home address of a law enforcement officer are exempt from access.

On appeal, the Pennsylvania Commonwealth Court concluded the evidence submitted by the state police and the State Troopers Association did not establish that disclosure of the records, when properly redacted, make it more likely than not that state police employees are at risk of substantial and demonstrable harm. The court found that the specific affidavits did not cite a single incident of a state trooper who was harmed by the release of his or her supplementary employment information and general testimony that police offices are frequently threatened should be denied under 708(b)(1)(ii) of the Right-to-Know Law.

The court found redaction was proper, because the Office of Open Records directed the state police to redact the social security numbers and home addresses of the troopers so no personal identification was contained on the forms, thus making the documents not exempt from disclosure under 708(b)(1)(ii). Section 506(c) of the Right-to-Know Law gives agencies the authority to make an otherwise exempt record accessible through the process of redaction. In light of the Office of Open Records' mandated redactions, the court concluded that the police failed to prove that the records Scolforo sought would disclose personal identification information. The court also noted that in light of the potential danger state troopers may face, the location of off-duty work and scheduling information of such work should also be redacted.

“As reporters, we have an obligation to know what the laws about access to government records and information are and to use them aggressively. That’s a key part of our job in our role as the public’s eyes and ears,” said Scolforo. Scolforo said he has not yet received the redacted documents. Calls to counsel for the State Troopers Association were not immediately returned.