Exemptions, Explained: 708(b)(2)

Today’s posting in our “Exemptions, Explained” blog is another of the so-called security-related exemptions: Section 708(b)(2).  Appeals Officer Blake Eilers wrote the legal analysis in this post. This exemption, which was cited in 802 of the OOR’s final determinations as of May 22, 2023, goes hand-in-hand with the exemption discussed in our last post, Section 708(b)(1)(ii).   This exemption is often cited by agencies in denying access to records related to correctional facilities, law enforcement policies, and agency surveillance cameras.

Section 708(b)(2) protects information, the disclosure of which would endanger the safety of the public at large:

“A record maintained by an agency in connection with the military, homeland security, national defense, law enforcement or other public safety activity that, if disclosed, would be reasonably likely to jeopardize or threaten public safety or preparedness or public protection activity or a record that is designated classified by an appropriate Federal or State military authority.

Releasing a record should not threaten public safety, and the Right-to-Know Law (RTKL) is not intended to supersede the classified status of a record as designated by the military. The RTKL is designed to effectuate access to public records; if the disclosure of a record would threaten public safety, it is plainly not a public record.

Much of the relevant caselaw discusses the burden of proof an agency must satisfy to prove that the exemption applies. Specifically, an agency must demonstrate a specific threat of harm that is reasonably likely to result from the disclosure of a record.   

  • Agencies must prove that (1) the record relates to a law enforcement or public safety activity and (2) that its disclosure is “reasonably likely”[1] to threaten public safety or a public protection activity.[2]  In assessing an agency’s evidence, Courts will consider whether the record meets what has been called Carey’s “three boxes”:
    • includes detailed information describing the nature of the records;
    • connects the records to a reasonable likelihood that disclosure would threaten public safety; and
    • establishes that disclosure would impair the agency’s ability to perform its public safety functions

Conclusory assertions, such as “the release of records will likely cause substantial risk of physical harm,” will not suffice; the agency must provide specific details.

  • Courts have further clarified this burden, explaining that “reasonably likely” requires more than “speculation or conjecture,” and for the risk of harm to be “substantial and demonstrable,” it must be apparent.[3]

It is important to remember that OOR attorneys are not experts in security matters. The OOR finds credible the professional opinions of individuals assessing security risks and will not substitute its judgment for that of those with far more familiarity with issues involving personal security.[4] However, the OOR may not rely upon the affiant’s experience in lieu of evidence that satisfies the elements of the exemption. In ACLU of Pa. v. Pa. State Police[5]  the Pennsylvania Supreme Court found that “merely citing the affiant’s experience and alleging a general risk of a threat to public safety … will not suffice.”

A Commonwealth Court case involving a request for prison policies underscores the complexity of the burden of proving this exemption. In York County v. Coyle,[6] the Court granted to access to some policies of the York County prison but denied access to others. Specifically, the Court found that the Warden articulated specific, “real and apparent” concerns about the disclosure of certain policies related to confrontations between staff and inmates. However, the Warden’s concerns about disclosing other policies was speculative, as it “described a potential for a cascading sequence of events, all premised upon a supposed increase in an inmate’s capacity to lie about his health or background, thus triggering a security-related decision by Prison staff, which the inmate might be able to exploit at some point in the future.” In layman’s terms, “this bad thing could happen in theory” is not an adequate reason to deny access to a record. The agency must demonstrate a concrete connection between the cited harm and the release of the information.

In a prison setting, the Commonwealth Court has repeatedly acknowledged that threats to public safety are of particular concern, and in such a context, an agency need not demonstrate specific prior examples of harm to meet its burden of proof.[7] While the OOR affords special weight to the opinions of security experts in the context of a correctional institution, as stated in ACLU, it is still incumbent on agencies to link disclosure with a reasonable threat of harm.  For example, the OOR routinely upholds agency denials of extraordinary occurrence reports (“EORs”) related to a use-of-force event, but where an agency fails to provide a link between the disclosure of the requested record and a threat that is reasonably likely to occur, the OOR will order disclosure, especially where the EORs are not related to a use-of-force event.[8]

As Coyle illustrates, whether a given policy is exempt depends on the nature of the policy and the evidence presented.  For example, the OOR has found that disclosure of policies providing tactical guidance to officers would pose a threat to officers’ safety because publishing that information would decrease the efficacy of the tactics.[9] The OOR has drawn a distinction between policies that are tactical in nature—i.e., those that govern how agency staff interact with citizens in dangerous situations—versus those that are administrative in nature.[10] While the OOR generally finds that tactical policies are exempt and administrative policies are not,[11] it is important to remember that this is not a totemic distinction, and the OOR may order the redaction of sensitive material while permitting the disclosure of non-threatening portions of a policy.  To reiterate, whether a given policy is exempt depends on whether an agency proves that its disclosure is reasonably likely to threaten public safety.[12]

The public safety exemption is often cited in response to requests for video surveillance footage, usually on the basis that disclosure will reveal the positioning and blind spots of surveillance cameras. The most common reason the OOR overturns a denial on this basis is because the recording was filmed by an undisguised, plainly visible camera in a public area.[13]  In Gregg Township v. Grove,[14] the Commonwealth Court affirmed the OOR’s order that the Township turn over the requested surveillance footage where the Township’s evidence did not describe what the footage depicted, nor did it explain how disclosure of any particular footage would be likely to harm public safety. 

On the other hand, in Allegheny County District Attorney’s Office v. Wereschagin,[15] the Commonwealth Court found that the disclosure of non-location system information related to a security camera network was exempt where detailed expert testimony established that this information, when used in concert with software and other tools, could facilitate the hacking of the camera network.  Significantly, the Court held that “The mere fact that the affidavits discuss a possibility of harm if the … [i]nformation is released does not make the affidavits speculative.”        

[1] Further discussion of the “reasonably likely” standard can be found in the second part of our last post. As with Section 708(b)(1)(ii), this exemption concerns the threat posed by the disclosure of the record, not the record itself. 

[2] Carey v. Pa. Dep’t of Corr., 61 A.3d 367, 373-74 (Pa. Commw. Ct. 2013) (holding that some records related to mass transfers of inmates to Michigan threatened public safety but requiring additional evidence specifically describing the records at issue).

[3] California Borough v. Rothey, 185 A.3d 456, 468 (Pa. Commw. Ct. 2018) (finding that evidence that disclosure of video footage of a holding cell might reveal blind sports and that could be used to conceal weapons or drugs did not satisfy the “reasonable likelihood” test); Borough of Pottstown v. Suber-Aponte, 202 A.3d 173, 184 (Pa. Commw. Ct. 2019) (finding that the agency proved that this exemption applied by providing detailed evidence describing the real and apparent dangers posed by disclosure of certain parts of the video footage of non-public areas of a police department).

[4] See Crocco v. Pa. Dep’t of Health, 214 A.3d 316, 324 (Pa. Commw. Ct. 2019) (“We also deem the opinions of persons with relevant background and experience, that include sufficient certainty, [to] constitute competent evidence.”) (internal citations omitted).

[5] 232 A.3d 654, 658 & 669 (Pa. 2020).

[6] No. 182 C.D. 2020, 2021 Pa. Commw. Unpub. LEXIS 426.  This case is unpublished, which means that it is not binding—that is, it doesn’t have the weight of law.  However, it can still be referenced for persuasive value. 

[7] See Ocasio v. Pa. Dep’t of Corr., No. 306 C.D. 2017, 2018 Pa. Commw. LEXIS 18 (“This Court has repeatedly recognized that the nature of the prison setting requires that personal security and public safety issues be given serious consideration where a RTKL request seeks records concerning prisons”); see also Carey, 61 A.3d at 374 (“security issues are of particular concern in a prison setting. Given the heightened risk associated with prisons, representations regarding perceived threats … posed by inmates are persuasive.”).

[8] Compare, e.g., Sholtis v. York Cnty., OOR Dkt. AP 2022-0666, 2022 PA O.O.R.D. LEXIS 1196 (noting that agency explained “in detail how EORs are related to the Prison’s efforts to maintain stability, safety, and security, and how their disclosure would enable interference with the Prison’s public protection activities); and Sholtis v. Butler Cnty., OOR Dkt. AP 2022-0482, 2022 PA O.O.R.D. LEXIS 1120 (same); with Vaughn v. Dauphin Cnty., OOR Dkt. AP 2023-0107, 2023 PA O.O.R.D. LEXIS 726 (finding that EORs related to transportation, emergency releases, inmate inventories and the like were not exempt where the agency did not link disclosure to a threat).

[9] See, e.g., Jaafari v. Erie City Police Dep’t, OOR Dkt. AP 2020-0975, 2020 PA O.O.R.D. LEXIS 2625; Sees v. Northumberland Borough, OOR Dkt. AP 2018-0729, 2018 PA O.O.R.D. LEXIS 1019.

[10] See Jaafari, 2020 PA O.O.R.D. LEXIS 2625.

[11] See, e.g., Bayne v. Allegheny Twp., OOR Dkt. AP 2022-0577, 2022 PA O.O.R.D. LEXIS 1205; Collier v. Indiana Borough, OOR Dkt. AP 2017-2356, 2018 PA O.O.R.D. LEXIS 229.

[12] See Stedjan v. Lower Swatara Twp. Police Dep’t, OOR Dkt. AP 2022-1252, 2022 PA O.O.R.D. LEXIS 1539.

[13] See, e.g., Grove v. Centre Cnty. Sherrif’s Off., OOR Dkt. AP 2020-2556, 2021 PA O.O.R.D. LEXIS 243, aff’d, No. 2021-0334 (Centre CCP 2021).

[14] Greg Twp. v. Grove, No. 186 C.D. 2017, 2018 Pa. Commw. Unpub. LEXIS 343 (Pa. Commw. Ct. 2018).

[15] 257 A.3d 1280, 1298 (Pa. Commw. Ct. 2021)

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.