Q: I requested access to the names, job titles, salaries, length of service and employment contracts for members of our local police department. The agency denied access to officers’ names saying that all the officers might, at some point, operate undercover. Can they do that?
A: No, public employee names, job titles, salary and other payments, employment contracts and length of service are expressly public. The exemption related to undercover employees does not apply to individuals not actively working undercover.
Records in the possession of public agencies are presumptively public, and Section 708(b)(6)(ii) of the Right-to-Know Law expressly requires public access to:
“…name, position, salary, actual compensation or other payments or expenses, employment contract, employment-related contract or agreement and length of service of a public official or an agency employee.”
In addition to its public access requirement, this provision allows agencies to redact “the name or other identifying information relating to an individual performing an undercover or covert law enforcement activity from a record.” 65 P.S. § 67.708(b)(6)(iii) (emphasis added). This exception only applies to individuals “performing,” e.g. currently working, undercover or as part of covert law enforcement activity. This provision does not, and was not intended to, provide a cloak of confidentiality for law enforcement officers’ names and other personnel-related information made public under Section 708(b)(6)(ii). The law strikes a balance by recognizing the importance of maintaining confidentiality for individuals actively working undercover while simultaneously recognizing the importance of transparency related to public employees who are publicly funded by and work in service of the community.
The Office of Open Records has ruled on this issue more than once, finding, for example, that “[W]hile the RTKL permits an agency to redact the names of individuals performing undercover or covert law enforcement activities, the names of other public employees are generally subject to public access.” See Marshall v. South Whitehall Township Police Dept., 2017 PA O.O.R.D. LEXIS 1640. The Commonwealth Court has also addressed similar denials of access and found that absent particularized concerns, the General Assembly has made the policy decision that public employee names and other information identified in Section 708(b)(6)(ii) is subject to disclosure. See Pa. State Police v. McGill, 83 A.3d 476, 480 (Pa. Cmwlth. 2014).
The requester in this case should consider filing an appeal with the state Office of Open Records to obtain the names of law enforcement officers funded by and serving the local community.
As always, this is not intended to be, nor should it be construed as, legal advice. Please contact your news organization’s corporate counsel or the PNA Legal Hotline at (717) 703-3080 with questions.