June 18, 2020

Faegre Drinker Represents ACLU in Successful Appeal to Supreme Court of Pennsylvania Over State Police’s Social Media

Faegre Drinker represented the American Civil Liberties Union of Pennsylvania (ACLU) in a successful appeal to the Supreme Court of Pennsylvania, which vacated an intermediate appellate decision that had allowed the Pennsylvania State Police (PSP) to withhold most of the provisions of its social media monitoring policy under Pennsylvania’s Right to Know Law.

The Right to Know Law is designed to promote transparency in government, but the PSP produced only a heavily redacted copy in response to a request by the ACLU, arguing that disclosing the full, unredacted policy would endanger its investigations and threaten public safety.

The ACLU challenged PSP’s redactions before the Office of Open Records, which reviewed the policy in camera and agreed with the ACLU that PSP should release a full, unredacted copy. PSP appealed, and the Commonwealth Court overturned that order, basing its decision only on affidavits from the State Police and categorically refusing to review the policy at issue. The Commonwealth Court reasoned that when a requestor’s right to a document turns on a prediction of what effect disclosure would have (e.g., whether or not it would threaten public safety), the court’s only function is to verify the agency had provided an affidavit that stood for that conclusion.

In its June 16, 2020 decision, the Pennsylvania Supreme Court vehemently disagreed, concluding that the Commonwealth Court had abused its discretion in refusing to examine the policy itself and accordingly had not fulfilled its obligation as a reviewing court. The case will now return to the Commonwealth Court, which must review the social media monitoring policy based on the Supreme Court’s analysis.

Faegre Drinker business litigation partners Alicia Hickok and Mark Taticchi represented the ACLU in the Supreme Court in this matter.  

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