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.”        

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[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)

When responding to a request, a school district must inquire with school board members regarding whether they have used personal email accounts for district business and whether those personal email accounts contain records responsive to the request. 2023-0289

Recommendations regarding renewal liquor license renewals made by a hearing examiner to the PA Liquor Control Board constitute an internal, predecisional and deliberative record that may be withheld.  2023-0605

The name, manner, and cause of death of a minor killed in an automobile accident is a public record. 2023-0530

A county failed to prove how the disclosure of properly redacted Extraordinary Occurrence Reports for the release of inmates to hospitals is likely to threaten the personal security of an individual or public safety. 2023-0107

An agency failed to demonstrate whether the geolocation data contained on a list encompasses home addresses, nor did it explain whether the latitude and longitude data is precise enough for the requester to accurately determine a street address from it. Thus the geographic location information may not be withheld under the auspices of the state constitutional right to privacy. 2022-2836

Today we begin a new series of posts called, “Exemptions, Explained”.

Under the Right-to-Know Law (“RTKL”), thirty categories of records are exempt from mandated access.  These categories are outlined in Section 708(b) of the statute; each blog post will explore the presumed impetus behind the exemption, the types of records for which the exemption is often cited, and the court cases that have clarified legal use of the exemption.

Case law addressing each of the RTKL’s exemptions can be found on the OOR’s website at:  https://www.openrecords.pa.gov/Documents/RTKL/RTKL_Case_Index.pdf. 

Notably these records are not deemed “confidential” and, thus, prohibited from being released.  Rather the records falling within the RTKL’s exemptions are not required to be provided in response a RTKL request.  Therefore, unless the records are prohibited from being released by another state or federal law, the agency can, within its discretion, release them.

First up is Section 708(b)(1), which was cited in 997 of the OOR’s final determinations as of January 4, 2023. Appeals Officer Erika Similo wrote the legal analysis of this exemption.

Section 708(b)(1) exempts:

(1) A record, the disclosure of which:

(i) would result in the loss of Federal or State funds by an agency or the Commonwealth; or

(ii) would be reasonably likely to result in a substantial and demonstrable risk of physical harm to or the personal security of an individual.

708(b)(1)(i) Loss of Federal or State Funds

The two parts of this exemption are quite distinct. The first, 708(b)(1)(i), states that records that would result in the loss of Federal or State funds by the agency may be withheld.  Although not frequently cited, the impetus behind this subsection is clear; an agency should not be forced to risk violating another law or rule that would result in the loss of critical funds.

When considering 708(b)(1)(i), the OOR interprets this exemption as a concrete loss of funds, not a speculative one; thus, the agency must be able to demonstrate the specific mechanism for this loss of funds versus just citing that potential. 

• In Carlson v. Housing Auth. of the City of Pittsburgh[1],the Request sought a copy of a particular federal grant application submitted to the U.S. Department of Housing and Urban Development (“HUD”).  On appeal, the agency did not provide evidence that it would, in fact, lose any federal funding if the application was disclosed.  Accordingly, the OOR determined that the agency did not meet its burden of proving the requested grant application is exempt from disclosure under Section 708(b)(1)(i) of the RTKL. 
• In Bridy v. Northumberland Cnty[2]., the Request sought contracts, studies, and other information related to a specific property where a 911 tower is located and other potential locations for a new 911 tower.  On appeal, the agency submitted no evidence, and when asked by the OOR to provide support for the contention that disclosure of the studies would result in the loss of federal funding, the agency responded that itwasunable to locate any federal guidelines that would jeopardize the agency’s funding.  Because the agency was unable to demonstrate the specific mechanism for this loss of funds, the OOR determined that the agency did not demonstrate that the requested records were exempt from disclosure under Section 708(b)(1)(i) of the RTKL. 

More often, however, on appeal, Section 708(b)(1)(i) is argued in conjunction with a specific statute, such as the federal Family Educational Rights and Privacy Act (FERPA)[3] which protects “personally identifiable information” contained in “education records” from disclosure and financially penalizes school districts “which [have] a policy or practice of permitting the release of education records…of students without the written consent of their parents.”  Therefore, agencies often argue that a requested record is a student record, and its release would risk the loss of education-related funds. 

• For example, in Fieber v. New Hope-Solebury School District[4], a RTKL request was filed seeking  records related to a settlement agreement and a contract.  The agency argued that the requested records were protected by FERPA and were exempt from disclosure under Section 708(b)(1)(i) because the disclosure of the requested records would result in the loss of federal or state funds. The OOR found that, while settlement agreements are generally subject to public disclosure—so long as personally identifying information can be redacted—the agency demonstrated that redaction of the student’s name from both requested records would not protect the student’s identity as required by FERPA.  Thus, the OOR determined that the requested records were exempt from disclosure in their entirety under FERPA. 
• More recently, in Mayer v. Tredyffrin-Easttown School District[5], a RTKL request was filed seeking benchmark reading data broken down by school and student.  In that instance, the agency argued that spreadsheets containing certain benchmark elementary school reading data were protected by FERPA and were exempt from disclosure under Section 708(b)(1)(i) RTKL.  The OOR determined that the agency demonstrated that the responsive records could not be sufficiently de-identified and, therefore, the records were wholly protected by FERPA. 

Because Section 708(b)(1)(i) is most always argued in conjunction with another state or federal law, such as FERPA, little guidance regarding this exemption has been provided by the Courts because cases where this exemption is raised usually does not address the merits of 708(b)(1)(i). 

However, in Easton Area Sch. Dist. v. Miller[6], the Pennsylvania Supreme Court examined FERPA’s relationship to Section 708(b)(1)(i) of the RTKL.  It found that a school bus surveillance video that qualifies as an education record under FERPA is not automatically exempt from disclosure under the RTKL. The agency must prove that disclosure of the video would result in loss of federal funds, and student images should be redacted from any publicly released recording.

708(b)(1)(ii) Physical Harm/Personal Security

The second part of Section 708(b)(1) covers physical harm or personal security of an individual.  The purpose behind this subsection is clear; the right to view records is not outweighed by a real threat to an individual’s safety and security.  The statutory language, however, does set the bar high, as the disclosure of the records sought—not the records themselves—must be “reasonably likely to result in a substantial and demonstrable” risk of harm.

Since this exemption does not define “reasonably likely” or “substantial and demonstrable risk[,]” guidance has been provided by the Commonwealth Court:

• An agency must show “a reasonable likelihood” of “a substantial and demonstrable risk” of harm .[7]
• An agency must offer more than speculation or conjecture to establish the security-related exceptions under the [RTKL].”[8] 
• Section 708(b)(1) can be applied to groups of people if a risk would apply to many people at once, but still cannot be speculative.[9] 

In practice, Section 708(b)(1)(ii) is often cited by law enforcement agencies, such as police departments and correctional facilities, when seeking to protect the disclosure of certain records in their possession (e.g. policy and procedure manuals, use of force records, incidents reports, records that identify officers, etc.).  

Section 708(b)(1)(ii) is also frequently cited by various agencies, including correctional institutions, in the denial of surveillance videos.  In Hatch v. Pennsylvania Department of Corrections[10], the OOR found that the agency met its burden of proof that the release of surveillance footage from inside a correctional facility is exempt under Section708(b)(1)(ii). 

Further, following the guidance of the Court, the OOR has generally found the professional opinion of individuals assessing the security risks to be credible and will not substitute its judgment for that of those with far more familiarity with the issues involving personal security (and public safety).  Nonetheless, the OOR is not required to blanketly accept such opinions.  Professional opinions are still required to consist of more than mere speculation and must be supported by an adequate factual basis when setting forth security risks.[11] 

Even though many agencies that argue that records are exempt from disclosure pursuant to this exemption are law enforcement agencies or correctional institutions, 708(b)(1)(ii) is also argued in other instances.

Recently, in Cristea v. Bristol Township School District[12], the OOR determined that the agency proved that the release of card swipe records for a specific employee over several dates was reasonably likely to endanger that individual’s personal security.   

Other Commonwealth Court cases that address Section 708(b)(1)(ii) of the RTKL and that are discussed in more detail in the OOR’s Case Law Index are:

• Brown v. Pa. Department of State, 189 A.3d 1162 (Pa. Commw. Ct. 2018). 
• State Employees’ Retirement System v. Pennsylvanians for Union Reform, 113 A.3d 9 (Pa. Commw. Ct. 2015).
• Pennsylvania State Troopers Association v. Scolforo, 18 A.3d 435 (Pa. Commw. Ct. 2011).
• Commonwealth v. Pennsylvanians for Union Reform, Inc., 105 A.3d 61 (Pa. Commw. Ct. 2014).

As a final note, because the objective of the RTKL is to afford citizens access to information concerning government activities, even when considering the security related exemptions, such as 708(b)(1)(ii), the OOR will prefer redaction of the protected information in responsive records rather than withholding of the records entirely, if evidence establishes that redaction can satisfy the apparent security risk.[13] 

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[1] OOR Dkt. AP 2013-1820

[2] OOR Dkt. AP 2022-2112

[3] 20 U.S.C. § 1232g(b)(1). 

[4] OOR Dkt. AP 2013-1020

[5] OOR Dkt. AP 2019-2019

[6] 232 A.3d 716 (Pa. 2020)

[7] Del. Cnty. v. Schaefer 44 A.3d 1149 (Pa. Commw. Ct. 2012)

[8] Cal. Borough v. Rothey, 185 A.3d 456, 468 (Pa. Commw. Ct. 2018).

[9] Crocco v. Pennsylvania Department of Health. 214 A.3d 316, 324 (Pa. Commw. Ct. 2019) (upholding the redaction of names of individuals who served non-hospital abortion facilities under Section 708(b)(1)(ii)); State Employees’ Retirement System v. Fultz, 107 A.3d 860, 866-67 (Pa. Commw. Ct. 2015) (deeming categorical evidence as to vulnerability of individuals over age 60 insufficient).

[10] OOR Dkt. AP 2019-2637,

[11]See Ocasio v. Pa. Dep’t of Corr., 183 A.3d 506, 2018 Pa. Commw. LEXIS 18 (Pa. Commw. Ct. 2018) (unreported) and American Civil Liberties Union of Pennsylvania v. Pennsylvania State Police, 232 A.3d 654, 666 (Pa. 2020) 

[12] OOR Dkt. AP 2022-1610

[13] See Vaughn and PennLive v. Dauphin County, OOR Dkt. AP 2023-0107 and Steinheiser v. Southeastern Pennsylvania Transportation Authority, OOR Dkt. AP 2022-1908

A county’s policy requiring a requester to provide an address is permitted under the Right-to-Know Law. 2023-0495

An unsworn position statement from an agency does not constitute evidence. 2023-0389

Netflix histories from the accounts of correctional institutes are not records of the agency. 2023-0438

An agency can meet its burden to provide records by notifying the Requester that the record is available through publicly accessible electronic means. 2023-0463

The personal IP addresses used by employees to fill out an agency survey are not records of the agency. 2022-2875

An employee’s handwritten calendar is exempt as a note or working paper used solely for an employee’s own personal use. 2023-0308

A review of records by an OOR appeals officer found that some school district emails contained factual information and did not contain exempt information.  2022-0554

When filing an appeal, the requestor must include the agency’s response to the original Right-to-Know request. 2023-0252

An agency meets its burden of providing access to public records when it provides a weblink to the responsive records. 2023-0262

Employment applications for an individual who is not hired by an agency are exempt from public access, even when the requester seeks records related to his own application. 2022-2830

An agency failed to justify the costs it charged for duplication and mailing of a granted records request. 2022-2774

Agencies are not required to provide copies of agency hard drives.  2023-0191

Some records related to an investigation of alleged elder abuse are exempt under the Older Adult Protective Service Act. 2022-2868

The Office of Open Records does not have jurisdiction over appeals of unemployment compensation benefits decisions.  2023-0108

Some libraries are considered a local government agency (2022-2541) while others are not (2022-2853).

A police department failed to establish that it does not possess records related to the mileage of cars in its fleet. 2022-2583

The agency failed to prove that aggregate number of medical marijuana certifications issued by practitioners are exempt under the Medical Marijuana Act. 2022-2635

A government agency must prove that redactions in legal invoices consist of an attorney’s conclusions, legal theories, legal research or opinions. 2022-2709

Proposals related to a canceled bidding process are public records even if those proposals were never formally rejected.  2022-2521

An agency is only required to provide records in the manner in which the currently exist, and not necessarily in the manner preferred by the requester. 2022-2169

An employee’s union affiliation is protected by the constitutional right to freedom of association. 2022-2291

A list of 9th graders enrolled at Central High broken down by middle school attended is protected by FERPA. 2022-2258

Granted request for data on collisions in the Delaware River as agency failed to prove records are internal/predecisional deliberations, noncriminal investigative records, or subject to a federal confidentiality statute. 2022-1985

A county consortium for school district health insurance proved that it is not an agency under the RTKL. 2022-2279

Engineering and architectural drawings may not be photographed if they are protected by the Federal Copyright Act. 2022-2347

Thanks to the nearly 300 people who logged on to watch the training live. Lots of great questions. Watch for the first time (or again) by clicking the links below.

Video

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Aggregate data about disability services provided to students may be public information.  2022-1989

Agency proved that it has not promulgated regulations defining “chicken meal” and thus a document responsive to the Request does not exist. 2022-2254

An agency may not be allowed to withhold a surveillance video if sensitive images may be blurred (“redacted”). 2022-1908

The Disease Prevention and Control Law allows the withholding of lead testing results even if the identities of individuals can be redacted. 2022-1724

If an agency has the technical ability to securely redact the responsive records electronically, it may not charge the requester for printing fees. 2022-2098