Digital Forensics Analysis Not Required Under Right-to-Know Request”

Pennsylvania Township is Not Required to Conduct Digital Forensics Analysis under Right-To-Know Request.

Overview: The Pennsylvania Commonwealth Court in Paint Township v. Clark, No. 2133 C.D. 2013 (Pa. Commw. Feb. 2, 2015), recently ruled that a municipality is not required to engage a forensics analyst to reconstruct deleted electronic information when responding to a request under Pennsylvania’s Right-to-Know Law.

Summary: The requesting party had asked for all texts, pictures, or video messages to or from the cell phone of the chairman of the Township’s board of supervisors. The Township and supervisor responded that requested information did not exist because the Township had ceased providing a publicly-funded cell phone to the supervisor prior to the request, the supervisor had deleted everything on the cell phone, and then had it reset and switched to a private contract. The trial court ordered the Township to conduct forensic analysis on the cell phone in order to retrieve deleted messages.

But the Commonwealth Court reversed that portion of the trial court’s order, holding that any data retrievable through forensics analysis does not constitute records held by the Township under the Right-to-Know Law, and therefore, the Township had no duty to produce the ESI from the formerly publicly-funded cell phone. “Whatever it is called, the information believed to still reside within the phone – or, presumably, the bits of scattered and not readily decipherable data and electrical impulses on a computer chip – was never shown to be a record of the Township, and the trial court erred in presuming otherwise.”



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