Appeal to Pennsylvania Denial of Records in FOIA Response

January 14, 2004

January 14, 2004

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Pennsylvania State Police
Bureau of Research and Development
Attn:  Right-to-Know Law Exceptions Official
1800 Elmerton Avenue
Harrisburg, PA  17110

Re:  Appeal of Partial Denial of Right-to-Know Request No. 2003-141

 

Attention:

This letter represents an appeal of the Pennsylvania State Police's (PSP) denial of the release of all records held by the agency regarding the Multistate Anti-Terrorism Information Exchange (MATRIX) (65 P.S. § 66.3-5).

The MATRIX system is a combination of public and private databases housed by the Florida Department of Law Enforcement (FDLE) and run with the assistance of a private company, Seisnet Inc., that contains an unknown amount of personal information about millions of Americans.  Previously disclosed documents from the PSP make clear that the state of Pennsylvania is a full participant in this program.  It has contributed data from at least three state agencies[1] and in return has received the right to access the system for ""criminal intelligence and investigative purposes."" (Memorandum of understanding between the Pennsylvania State Police and the Florida Department of Law Enforcement for the purpose of sharing data to be searched against the proprietary databases of Seisint, Inc.)

We have requested all documents regarding the MATRIX system including system specifications, types of personal data accessed, procedures for analyzing the data, results of tests on the system, individuals with access to the system, privacy procedures, usage statistics, legal analyses, organizational details and training records.  Please see the attached letter for a full enumeration of the requested documents.  In response to this request on December 30, 2003 PSP provided eight documents:  minutes of a meeting between various states and Seisint, an e-mail discussing entry to the system, a memo of understanding between PSP, FDLE and Seisint, another memo of understanding between PSP, the state Department of Transportation, the state Department of Corrections, FDLE and Seisint, a user form to access MATRIX, a security agreement, a brochure on MATRIX, and the MATRIX privacy policy.  PSP denied access to all records used to reach a decision to enter MATRIX and simply provided records memorializing this decision.

The PSP has based its denial on five legal arguments:  the records do not fit the definition of public records under 65 P.S. § 66.1; PSP does not control the documents; disclosure would operate to the impairment of a person's personal security; the records are attorney work product and the records are trade secrets of Seisint.  PSP conditions the largest portion of its denials on the first basis, the definition of a public record.

A.                 The Definition of a Public Record

Pennsylvania state law defines a public record in relevant part as:

Any account, voucher or contract dealing with the receipt or disbursement of funds by an agency or its acquisition, use or disposal of services or of supplies, materials, equipment or other property and any minute, order or decision by an agency fixing the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons.  65 P.S. §66.1.

Further, ""A broad construction is given to the initial determination of whether a document is a public records under Section 1(2) of the Act, which is to be tempered as an opposing party brings into play the enumerated exceptions."" Della Franco v. Department of Labor and Industry, 722 A.2d 777 (Pa.Cmwlth.1999).  Records can qualify as public records if they are either contracts for the use of services or a decision fixing a personal right.

I.                   Contracts for the use of services

The relevant part of §66.1 for this application of the public records law is ""Any ? contract dealing with the ? use ? of services.""  The PSP clearly have a contract with FDLE to participate in the MATRIX system.  They have several documents signed by both parties enumerating their rights and responsibilities.[2]  Consideration has also been exchanged.  The PSP has given FDLE access to the personal information of Pennsylvania's citizens in exchange for access to the MATRIX system.   PSP would not be allowed to participate in MATRIX if it had not supplied this information.

Further, the state will certainly have to pay for access to the MATRIX system in the future.  According to media reports, the state of Texas projected its own costs to be $1.7 million annually for program participation.  (John Murawski, States Bow Out of Anti-Crime Database in Boca, PALM BEACH POST, October 4, 2003)  It is clear that if the PSP had already made such a payment for access to the MATRIX system it would have been an account dealing with the disbursement of funds and would have been covered by the Act.  Sapp Roofing Company, Inc. v. Sheet Metal Workers' International, Local Union no. 12, 552 Pa. 105, 713 A.2d 627 (1998).

Because PSP and FDLE have a contract for services all records dealing with this contract are public records.  Such records must include all documents describing the service being obtained including specification of the system, data in the system and records evaluating the effectiveness of the service, both before and after the contract was formed.  Examples of these types of records, which the PSP has admitted it has but has not disclosed include, the number and type of people with access to the system, usage statistics, potential uses for the system[3], analyses of the legality and effectiveness of the system, training records and a listserv between Seisint and member states answering questions and describing the system.  We believe a significant number of records described in our original Right-to-Know letter meet this definition but have not been disclosed.

II.                Decisions Fixing Personal Rights

The court has construed the second portion of the public records test, a decision by an agency fixing the personal or property rights, through the use of a four-part test:

[T]he person seeking the information must establish that the requested material 1) is generated by an agency covered under the Act; 2) is a minute, order or decision of an agency or an essential component in the agency arriving at its decision; 3) fixes the personal or property rights or duties of any person or group of persons; and 4) is not protected by statute, order or decree of court. Tribune-Review Pub. Co. v. Department of Community and Economic Development, 751 A.2d 689 (Pa.Cmwlth. 2000) (citing Della Franco v. Department of Labor and Industry, 722 A.2d 776 (Pa.Cmwlth.1999); Nittany Printing & Publ'g Co., Inc. v. Centre County Bd. of Comm'rs, 156 Pa.Cmwlth. 404, 627 A.2d 301 (1993)).

It is very clear that the PSP's decision fixes a personal right of the citizens of the Commonwealth.  The court has expressly delineated a personal right to privacy.  Commonwealth v. Edmunds, 586 A.2d 887 (Pa.1991); Denoncourt v. Com., State Ethics Commission, 470 A.2d 945 (Pa.1983).  Except for the specific statutory objections addressed below, the PSP has not raised any general statutory protections for the release of records.  While it is impossible to know precisely what documents the PSP has created as part of joining the MATRIX system, some process of evaluation must have occurred before the state entered the MATRIX system and some evaluation and monitoring must still be occurring as the state continues to use the system.  As described in the first part of this section, these records include the number and type of people with access to the system, usage statistics, potential uses for the system, analyses of the legality and effectiveness of the system, training records, and a number of other records enumerated in our original Right-to-Know letter.

These records would meet the criteria enumerated under Tribune-Review Pub. Co.  Generated by the agency to analyze the use, legality, effectiveness, and training criteria for the MATRIX system, these records would be the essential in deciding whether to join and continue to participate in the system. 

B.                 3rd Party Records

PSP has asserted that it cannot disclose a number of records because these records are the records of Seisint or the FDLE.  However the court consistently requires the disclosure of 3rd party records in contractual matters if the records deal with the contract at issue.  Examples include payroll records of a private company, settlement claims and mailing lists.  Sapp Roofing 713 A.2d at 630; Morning Call, Inc. v. Housing Authority of City of Allentown, 769 A.2d 1246 (Cmwlth.2001); Aronson v. Pennsylvania Dept. of Labor and Industry, 693 A.2d 262 (Cmwlth.1997).  Additionally the court has ordered records held by a 3rd party to be produced pursuant to a Right-to-Know action.  Carbondale Tp. v. Murray, 440 A.2d 1273 (Pa.Cmwlth. 1982).

C.                 Impairment of Personal Security

PSP has asserted that it cannot disclose identifying personnel with access to the MATRIX database because it would ""operate to the impairment of a person's personal security.  However, the phrase "personal security" as used in Section 1(2) of the Law does not mean "personal privacy." Tribune-Review Publishing Co. v. Westmoreland County Housing Authority, 795 A.2d 1094 (Pa.Cmwlth.2002) (citing Kanzelmeyer v. Eger, 16 Pa.Cmwlth. 495, 329 A.2d 307 (1974)).  It is difficult to see how disclosure of the names of individual who are already known as members of the PSP or other law enforcement agencies could be impaired by the disclosure that they have access to the MATRIX system.  Further, if individuals are involved in sensitive law enforcement operations the list should still be released with these individual's names redacted as required under 65 P.S. § 66.3-2.

D.                Attorney Work Product

PSP has asserted that legal analyses are barred from disclosure as attorney-work product.  While we acknowledge that such a privilege exists, it's application has been limited to records created after the commencement of a lawsuit.  LaValle v. Office of General Counsel of Com., 769 A.2d 449 (Pa.2001).  No such suit exists in this instance.  Further, to quote Tribune-Review:

If the preparation of a writing, such as a litigation settlement document, by an attorney for an agency or by an attorney-in-fact for the agency's insurer is not viewed as preparation by the agency, any public entity could thwart disclosure required by the Act by having an attorney or an insurer's attorney prepare every writing that the public entity wishes to keep confidential. Tribune-Review Pub. Co. v. Westmoreland County, 833 A.2d 112 (Pa. 2003).

Similarly, if all documents prepared by an attorney are viewed as confidential, the agency will simply have every document that it wishes kept confidential prepared by an attorney.  This activity would thwart the broad aims of the act to provide access to all public records.  65 P.S. § 66.2.  Even if some documents dealing with the MATRIX system are covered under the attorney work product rule, these documents should be limited legal analysis and represent a small portion of the documents we have requested.

E.                 Trade Secret Information

PSP has asserted that it cannot disclose records because these records are proprietary trade secrets of Seisint.  However, the claim of trade secret protection is not a basis for failure to disclose a public record.  65 P.S. §66.1 states that the term public record ""shall not mean an report, communication or other paper ? the publication of which is prohibited, restricted or forbidden by statue law or order or decree of court.""  Pennsylvania has no trade secret statute, nor is there any statutory prohibition on release of trade secrets in the Right-to-Know law.   Also there is no order or decree of court barring the release of this information.  Under the plain meaning of the statute there can be no statutory right to fail or disclose records because of a trade secret.

Further, information shared with the state cannot be categorized as a trade secret absent any specific statutory protection under the Right-to-Know law.  According to the court, ""The crucial indicia for determining whether certain information constitutes a trade secret are substantial secrecy and competitive value to the owner.""  O.D. Anderson, Inc. v. Cricks, 815 A.2d 1063 (Pa.Super.2003) (quoting section 757 of the Restatement of Torts).  All entities that do business with government agencies are aware that these agencies are substantially governed by freedom of information acts similar to Pennsylvania's Right-to-Know law.  There can be no expectation of substantial secrecy when the individuals involved know that sharing information with public agencies opens it up to the purview of public information laws.

Conclusion

In accordance with 65 P.S. §66.3-5 we formally appeal our December 30, 2003 partial denial of all PSP records dealing with the MATRIX system.  Under the Right-to-Know law we believe we have the right to all documents requested in our October 30, 2003 letter including the number and type of people with access to the system, usage statistics, potential uses for the system, analyses of the legality and effectiveness of the system, training records and a listserv between Seisint and member states answering questions and describing the system.

Pennsylvania's Public Records Law expresses the state's policy that all state records be available at all times for inspection by any person.  In accordance with 65 P.S. § 66.1-66.9, we would like the requested records to be made available to us immediately.  If, for any reason, any of the requested records will not be made available to us immediately, please advise us in writing as soon as possible at fax number (215) 592-1343.

We agree to compensate PSP for the cost of duplicating any of the records of which we requested duplication, as provided by law.  Upon locating the requested documents, please contact us prior to photocopying and advise us of the actual costs of duplication or any necessary staff research time so that we may decide whether a narrowing of the request will be necessary.

If you have any questions, please do not hesitate to contact us.  Your immediate attention to these matters is greatly appreciated.  Thank you for your assistance.

Sincerely,



[1] According to the State Police it, along with the state Department of Corrections and Motor Vehicles, has already completed an agreement with the state of Florida to share with both Florida and Seisnet, the following information:

§         Motor vehicle and driver record information,

§         Criminal history record information,

§         Inmate visitor information,

§         Inmate account information, and

§         Inmate phone lists.

[2] Under the agreement entered into between the FDLE and the PSP:

Each party may also terminate this agreement for cause ? Cause may also be deemed to exist if ? changed circumstances require either party to curtail performance hereunder, or if changed circumstance require either party to perform more or less than was envisioned at the time this Agreement was executed.

Performance seems consist primarily of the continuous supply of personal information.  

[3] PSP has indicated that it has in its possession a document, Factual Analysis Criminal Threat Solutions (FACTS) Success Stories, which describes applications of the system. 

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