PA State Police v. ACLU of PA, Aplt. ( 2023 )

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IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
PENNSYLVANIA STATE POLICE, : No. 44 MAP 2022
:
Appellee : Appeal from the Order of the
: Commonwealth Court at No. 1066
: CD 2017 dated November 17, 2021
v. : Vacating the Determination of the
: Office of Open Records at No. AP
: 2017-0593 dated July 7, 2017 and
AMERICAN CIVIL LIBERTIES UNION OF : Remanding.
PENNSYLVANIA, :
: ARGUED: March 7, 2023
Appellant :
OPINION
JUSTICE WECHT DECIDED: August 22, 2023
This appeal arises under the Right-to-Know Law (“RTKL”). 1 We consider whether
the Commonwealth Court abused its discretion when—sua sponte—it issued a remand
to the Office of Open Records (“OOR”) for additional fact-finding after that court already
had determined that the agency subject to the record request failed to meet its burden of
proving that an exception to disclosure requirements applied. We conclude that such an
abuse of discretion occurred, and we accordingly reverse. We remand this matter to the
Commonwealth Court for disposition consistent with this Opinion.
The General Assembly enacted the RTKL in 2008 in an effort to promote
transparency. The RTKL provides that any “record in the possession of a Commonwealth
agency or local agency shall be presumed to be a public record” unless it is protected by
a privilege, exempt from disclosure under “any other Federal or State law or regulation or
1 Act of Feb. 14, 2008, P.L. 6, No. 3, 65 P.S. §§ 67.101- 67.3104.
judicial order or decree,” or exempt under Section 708 of the RTKL. 2 The burden of
proving that one of the Section 708 exceptions applies belongs to the Commonwealth
agency that is resisting disclosure. 3
In March 2017, the American Civil Liberties Union of Pennsylvania (“ACLU”)
submitted a RTKL request to the Pennsylvania State Police (“PSP”) seeking a copy of
AR 6-9, a nine-page regulation that explains how that agency monitors social media. PSP
produced the policy, but heavily or completely redacted every page. PSP asserted that
these redactions were appropriate pursuant to the public safety exception of Section 708,
which exempts from disclosure records:
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. 4
PSP submitted the affidavit of Major Douglas J. Burig, the Director of PSP’s Bureau of
Criminal Investigations, in support of its position. Major Burig attested that disclosing AR
6-9 would jeopardize the effectiveness of PSP investigations.
ACLU filed an administrative appeal with OOR, requesting an in camera review of
the unredacted policy so that OOR could determine whether the public safety exception
applied. OOR examined AR 6-9 section by section and explained why, as to each, the
Burig Affidavit’s claims about the likely effects of disclosure were not supported by the
substance of the unredacted text. OOR determined that “[t]he processes described . . .
are strictly internal and administrative in nature, providing third parties with no opportunity
to intercept or alter any Trooper’s request or clearance to conduct any investigation.” 5 In
2 65 P.S. §§ 67.305(a), 67.708.
3 Id. § 67.708(a)(1).
4 Id. § 67.708(b)(2).
5 OOR Final Determination, 7/17/2017, at 5-6 (hereinafter, “O.F.D.”).
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short, “the threats outlined in [the Burig Affidavit] simply do not match the text of the
policy.” 6 Accordingly, OOR directed PSP to furnish ACLU an unredacted copy.
PSP appealed, and a three-judge panel of the Commonwealth Court reversed. 7
The court opined that, while establishing the likelihood of a threat required more than
speculation, the agency was not required to establish a definite threat. 8 Contrary to
OOR’s conclusion, the panel determined, the Burig Affidavit was sufficient to sustain
PSP’s burden because Major Burig’s conclusions were grounded in his extensive
experience. In camera review was not necessary, the court explained, where “the effect
of the disclosure” was at issue, as opposed to “the actual words on the page.” 9
We granted ACLU’s petition for allocatur, and we vacated the Commonwealth
Court’s order. We held that the ruling below “eliminate[d] one of the key structural
features of the current RTKL process and create[d] a de facto presumption of non-
disclosure in virtually all cases” where the effect of disclosure is at issue. 10 The
Commonwealth Court had “accepted the contents of a wholly untested affidavit,” which
was “necessarily vague,” and did not “[avail] itself of the readily available opportunity to
measure the [Burig Affidavit] against [AR 6-9].” 11 In granting PSP undue and sweeping
6 Id. at 9.
7 Pa. State Police v. ACLU of Pa., 1066 C.D. 2017, 2018 WL 2272597 (Pa. Cmwlth.
May 18, 2018) (“PSP I”).
8 See id. at *2 (discussing Carey v. Pa. Dep’t of Corr., 61 A.3d 367, 375 (Pa. Cmwlth.
2013); Harrisburg Area Cmty. Coll. v. OOR, 2110 C.D. 2009, 2011 WL 10858088 (Pa.
Cmwlth. May 17, 2011)).
9 Id. at *6 (emphases added). The court noted that situations in which it had
reviewed unredacted documents in camera “usually . . . involved exemptions claimed
under the attorney-client privilege or the predecisional deliberative process.” Id. (citing
Twp. of Worcester v. OOR, 129 A.3d 44, 60 (Pa. Cmwlth. 2016)).
10 ACLU of Pa. v. Pa. State Police, 232 A.3d 654, 669 (Pa. 2020) (“PSP II”).
11 Id. at 670.
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deference, we concluded, the Commonwealth Court had erected a barrier to disclosure
that was “irreconcilable with the RTKL.” We held that the court had abused its discretion
by declining to conduct in camera review “simply because there [was] no facial evidence
of bad faith.” 12 This Court vacated the Commonwealth Court’s order and remanded the
case for further proceedings.
Following remand, the Commonwealth Court proceeded to conduct an in camera
review of the unredacted version of AR 6-9. 13 The court determined that the text of each
section
and the description and statements in the affidavit concerning the risks
arising from disclosure [were] insufficient to allow [it] to determine whether
disclosure . . . could reasonably be expected to aid criminals in evading
detection of illegal activities or [with respect to some sections,] to aid
unacceptable candidates in hiding unfavorable background information. 14
The Commonwealth Court repeatedly found that it could not “determine from the current
record whether disclosure of this section would be reasonably likely to threaten public
safety or preparedness.” 15 The court recognized that, in general, “it is the burden of the
party resisting disclosure to establish that an exemption from the RTKL applies.” 16 It
opined, however, that, “where the subject matter of a request involves public safety or
security, such as in police matters, careful consideration of a complete record is especially
important, and supplementation of the record, if necessary, is appropriate.”17
12 Id.
13 Pa. State Police v. ACLU of Pa., 1066 C.D. 2017, 2021 WL 5356532, at *2 (Pa.
Cmwlth. Nov. 17, 2021) (“PSP III”).
14 Id. at *2-*4.
15 Id.16 Id. at *4 (citing Pa. State Police v. Muller, 124 A.3d 761, 766 (Pa. Cmwlth. 2015)).
17 Id.[J-3-2023] - 4
In spite of its finding that Major Burig’s Affidavit was “insufficient to connect the text
of AR 6-9 with the risks he articulates,” the court concluded nonetheless that “PSP should
be given a further opportunity to explain the nature and degree of the risks it claims are
inherent in potential disclosure of the contents of AR 6-9.” 18 It then vacated OOR’s Final
Determination and remanded the matter to OOR for “further supplementation of the
record, including an evidentiary hearing, and issuance of a new determination.” 19 ACLU
again petitioned this Court for allocatur, which we granted.
ACLU first argues that the Commonwealth Court abused its discretion in refusing
to order the release of AR 6-9, given that court’s conclusion that the Burig Affidavit did
not support PSP’s heavy redactions. A “straightforward reading of the text of the RTKL
and a dispassionate application of this Court’s precedents,” ACLU asserts, leaves
“nothing left for the Commonwealth Court to do except affirm the OOR’s order.” 20
According to ACLU, the intermediate panel’s decision to remand lacked a basis in the text
of the RTKL or any justification on the record, and also conflicted with the statute’s core
purposes.
ACLU stresses that the General Assembly intended to require proof of “a probable
threat to public safety, not a possible or colorable one,” and ACLU maintains that the
Commonwealth Court undermined that requirement by exempting PSP from the
applicable burden of proof in light of its security concerns. 21 ACLU argues that, while the
General Assembly could have carved out a special status for law enforcement agencies,
it did not. As a result of “permitting [PSP] to obtain a do-over of its effort[s] to carry its
burden of proof,” ACLU contends, the decision below “undercuts expediency by
18 Id. at *5.
19 Id.
20 ACLU Br. at 14.
21 Id. at 15-16 (emphases in original).
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dramatically enlarging the time (and cost) required to secure a record’s release in public
safety cases.”22 ACLU reminds this Court that this appeal began over six years ago, and
ACLU objects to the prospect that, in returning to OOR for further fact-finding, it would be
sent back all the way to “Square One.”23 ACLU further cautions that affording PSP a two-
bites-at-the-apple rule would encourage agencies like PSP to rely upon affidavits that are
as vague as possible—knowing that they would get another opportunity to buttress their
arguments—and to intentionally protract litigation so that requesters are forced to
abandon their pursuits.
ACLU relies upon Department of Public Welfare v. Eiseman, in which this Court
refused to allow a Commonwealth agency—which had agreed that the only remaining
question was whether an exception applied—to introduce new evidence in support of a
new defense to disclosure. 24 We held that allowing the Department of Public Welfare to
“advance shifting positions” would frustrate the RTKL’s goals of timely disclosure. 25
ACLU argues that the same is true here. Moreover, ACLU contends that Carey v.
Pennsylvania Department of Corrections—a case upon which PSP relies—does not
compel a different conclusion. 26 There, the Commonwealth Court permitted
supplementation of the record based upon the Department of Corrections’ failure to
identify which records were responsive to the request and its failure to address whether
redactions were appropriate. 27 To the extent that Carey stands for the proposition that
22 Id. at 17 (discussing Bowling v. OOR, 75 A.3d 453, 473 (Pa. 2013) (“Bowling II”)
(noting the General Assembly’s “goal . . . of ensuring swift determinations”)).
23 Id. at 18.
24 125 A.3d 19, 29 (Pa. 2015)
25 Id.26 See ACLU Br. at 21-22.
27 61 A.3d at 377.
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an agency is allowed “to reboot the entire fact-development process with the benefit of
both perfect hindsight and a judicial explication” of the flaws in its initial attempt to defeat
disclosure, ACLU claims that it is irreconcilable with the structure and goals of the RTKL
and should be disapproved. 28 Today’s case, ACLU argues, is more akin to McKelvey v.
Pennsylvania Department of Health, where this Court rejected a request to supplement
the record because the agency in question had “received numerous opportunities to
submit evidence and argument before the OOR, and chose not to take advantage of those
opportunities.” 29
Finally, ACLU insists that the decision below constituted an abuse of discretion
because courts may only adopt the mantle of advocate and sua sponte fashion relief in
the rarest of circumstances, such as when there is a question of subject matter
jurisdiction. 30 Here, PSP had consistently maintained that the Burig Affidavit by itself was
sufficient to justify invocation of the public safety exception, and it had resisted the
consideration of any other facts. 31 Because concerns about jurisdiction did not animate
the Commonwealth Court’s disposition, because PSP never requested a remand, and
because supplementation was antithetical to the position that PSP maintained throughout
this litigation, ACLU requests that we deem the Commonwealth Court’s remand to be an
abuse of discretion. Although it acknowledges this Court’s statement in PSP II that, “[i]n
keeping with its authority under the RTKL, the [Commonwealth Court] . . . retains
discretion to further develop the record,” ACLU argues that any such development
28 See ACLU Br. at 21-22.
29 255 A.3d 385, 404 (Pa. 2021).
30 In re Adoption of K.M.G., 219 A.3d 662, 668 (Pa. Super. 2019) (“It is well
established that an appellate court may not raise an issue sua sponte, except when the
issue addresses the subject-matter jurisdiction of the court.”).
31 See ACLU Br. at 22-23 (citing PSP briefs throughout this litigation).
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nevertheless must be consistent with the structure of the RTKL. 32 Here, where the court
reviewed the unredacted version of AR 6-9 in camera and concluded that PSP’s
justification was insufficient, the only appropriate action was to order that the record be
disclosed.
PSP counters that the Commonwealth Court acted within its discretion as the
ultimate finder of fact when it remanded the case to OOR to expand the record. Moreover,
PSP asserts, that action was consistent with this Court’s instruction in PSP II. 33 Contrary
to ACLU’s assertion, PSP argues that Carey controls and that supplementation of the
record is appropriate. There, the Commonwealth Court recognized inherent risks
associated with the disclosure of information in the prison setting, 34 and PSP contends
that the same is true in the context of law enforcement. According to PSP, ACLU’s
position would represent “an impermissible restriction on the discretion of [fact-finding
courts] to seek additional evidence when circumstances” require it. 35 PSP asserts that
such a position would “remov[e] most, if not all, discretion from the court” to balance
competing interests and would require critical public safety information to be disclosed
“simply because an affidavit drafter hews slightly away from the needed specificity,
despite operating in good faith and raising legitimate concerns.” 36 PSP dismisses ACLU’s
concerns about agencies intentionally drafting affidavits that lack detail as “simple
fearmongering.”37
32 232 A.3d at 671; ACLU Br. at 25.
33 PSP Br. at 11-12.
34 See Carey, 61 A.3d at 377.
35 PSP Br. at 15-16.
36 Id. at 17.
37 Id.
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Regarding the sua sponte nature of the order, PSP argues that analogous
restrictions on that power “are of little value in interpreting a law without parallel.” 38
Finally, because it always maintained that the Burig Affidavit is sufficient, PSP contends
that “only the court . . . was in a position to elicit further development of the record.” 39
Accordingly, PSP argues that it should be allowed the opportunity to further substantiate
its position on remand.
In reviewing the Commonwealth Court’s sua sponte remand of this case for further
factual development, we determine whether that court abused its discretion. Our scope
of review is plenary. 40 We find that the panel below committed an abuse of discretion
because its decision had no basis in the text and structure of the RTKL, nor in the record,
and because it exceeded its limited power to act sua sponte.
Initially, we observe the Commonwealth Court’s conclusion in Bowling that, “in the
absence of a specific restriction, a court deciding a statutory appeal has the inherent
authority to take reasonable measures to ensure that a record sufficient for judicial review
exists.” 41 In the context of the RTKL, the Commonwealth Court has exercised this
authority to remand disclosure requests to OOR when there were outstanding questions
of fact, 42 when an identified and relevant party did not have an opportunity to be heard
38 Id. at 18 (citing PSP II, 232 A.3d at 664 (“[T]he RTKL has no analog in other
administrative or quasi-judicial frameworks . . . [.]”)).
39 Id. at 19.
40 Eiseman, 125 A.3d at 29.
41 Bowling v. OOR, 990 A.2d 813, 822 (Pa. Cmwlth. 2010) (“Bowling I”) (citing Appeal
of Borough of Churchill, 575 A.2d 550 (Pa. 1990)).
42 See, e.g., Pysher v. Clinton Twp. Volunteer Fire Co., 209 A.3d 1116, 1125 (Pa.
Cmwlth. 2019) (remanding to determine whether a fire company qualified as a local
agency under the RTKL); Dep’t of Labor and Indus. v. Earley, 126 A.3d 355, 358 (Pa.
Cmwlth. 2015) (remanding to determine whether requested email records, which had
been deleted, might still exist on a server); McGowan v. Pa. Dep’t of Env. Prot., 103 A.3d
(…continued)
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below, 43 where an agency summarily denied a fee waiver, 44 and where the court identified
evidence that should have been, but was not, considered. 45 In other cases, it has
remanded to correct a legal error, 46 to allow OOR to address a legal question in the first
374, 388 (Pa. Cmwlth. 2014) (remanding in part because “a genuine dispute exists as to
whether [the documents in question] . . . contain purely factual material”); Dep’t of Labor
and Indus. v. Rudberg, 32 A.3d 877, 882 (Pa. Cmwlth. 2011) (remanding to determine
whether performance review records in the agency’s possession “relate[d] to its own
employees or employees of other Commonwealth agencies”).
43 See, e.g., Pa. Turnpike Comm’n v. Elec. Transaction Consultants Corp., 230 A.3d
548, 563 (Pa. Cmwlth. 2020) (“We remand the matter to the OOR to allow [one of the
respondents] an opportunity to be meaningfully heard[.]”); Pa. Pub. Util. Comm’n v.
Sunrise Energy, LLC, 177 A.3d 438, 444-45 (Pa. Cmwlth. 2018) (remanding in part
because the recipient of agency documents subject to disclosure “did not have the
opportunity to protect its interests in its own attorney-work-product”); Wishnefsky v. Pa.
Dep’t of Corr., 144 A.3d 290, 295 (Pa. Cmwlth. 2016) (remanding because “Wishnefsky
was not afforded an opportunity to be heard and to answer the [agency’s] submission to
OOR”); Pa. Dep’t of Educ. v. Bagwell, 131 A.3d 638, 650 (Pa. Cmwlth. 2015) (remanding
in light of the fact that “PSU did not have a meaningful opportunity to be heard before the
initial fact-finder, OOR”).
44 See, e.g., Prison Legal News v. OOR, 992 A.2d 942, 949 (Pa. Cmwlth. 2010)
(“[T]he matter is remanded to the OOR for further remand to the Department to provide
explanations for why it denied [the] request for a public interest fee waiver[.]”).
45 See, e.g., Glunk v. Dep’t of State, 102 A.3d 605, 609 (Pa. Cmwlth. 2014)
(“Requester contended that the OOR failed to consider [a piece of evidence] . . . [and]
this [c]ourt remanded to the OOR for consideration of [that evidence]”).
46 See, e.g., West Chester Univ. of Pa. v. Rodriguez, 216 A.3d 503, 510-11 (Pa.
Cmwlth. 2019) (remanding where “the OOR applied incorrect standards with respect to
. . . FERPA’s education records definition” and instructing that “the instant case requires
a balancing analysis to protect alleged constitutional privacy rights”); State Employees’
Ret. Sys. v. Campbell, 155 A.3d 1153, 1156 (Pa. Cmwlth. 2017) (remanding and
instructing OOR to perform a balancing test as required by Pa. State Educ. Assoc. v.
OOR, 148 A.3d 142 (Pa. 2016)); Barnett v. Pa. Dep’t of Pub. Welfare, 71 A.3d 399, 405
(Pa. Cmwlth. 2013) (remanding in light of the conclusion that OOR erred by summarily
dismissing an appeal where the requester had satisfied the statutory requirements).
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instance, 47 to allow an agency the opportunity to make limited redactions where it had not
done so, 48 and to instruct OOR to conduct in camera review. 49 PSP argues that the
remand in this case was consistent with that authority, as well as our statement in PSP II
that the Commonwealth Court would retain its “discretion to further develop the record.”50
It is not.
In contrast to the foregoing examples, the Commonwealth Court in this instance
identified no outstanding questions of law or fact, nor any parties that should be granted
the opportunity to be heard. It discerned no legal error on the part of OOR. The
proceedings before OOR included in camera review. PSP had already redacted AR 6-9.
Neither party nor the court pointed to any particular evidence that was necessary to the
court’s analysis. Here, the Commonwealth Court answered the ultimate question 51 on a
record that was “sufficient for judicial review” 52 and—without naming any defect or
47 See, e.g., UnitedHealthcare of Pa., Inc. v. Baron, 171 A.3d 943, 965 (Pa. Cmwlth.
2017) (remanding to OOR to address two legal questions); Dep’t of Labor and Indus. v.
Heltzel, 90 A.3d 823, 834 (Pa. Cmwlth. 2014) (“[W]e remand to allow OOR to evaluate
the Section 708(b) exceptions in the first instance.”).
48 See, e.g., Pa. State Police v. Grove, 119 A.3d 1102, 1111 (Pa. Cmwlth. 2015)
(remanding to “permit PSP . . . to redact from [the] audio component [of the record]
witness interviews and utterances of private citizens who had no notice of the recording”),
rev’d on other grounds, 161 A.3d 877 (Pa. 2017); Carey, 61 A.3d at 377 (remanding
where “DOC did not connect responsive records with a threat to public safety” or address
whether it “may be able to redact responsive records and thus render them non-
threatening to public safety”).
49 See, e.g., California Univ. of Pa. v. Schackner, 168 A.3d 413, 423 (Pa. Cmwlth.
2017) (“[W]e remand this matter to the OOR to conduct in camera review of [the records]
and to determine whether the records should be exempt from disclosure based on the
attorney-client privilege.”).
50 PSP II, 232 A.3d at 671.
51 PSP III, 2021 WL 5356532, at *5 (finding that the Burig Affidavit is “insufficient to
connect the text of AR 6-9 with the risks he articulates”).
52 Bowling I, 990 A.2d at 822.
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deficiency—simply gave PSP a fresh opportunity to carry its burden of proving that an
exception to the disclosure rule applied. In the context of the RTKL, we conclude that the
court abused its discretion. 53
As this Court has recognized, “various provisions of the RTKL demonstrate an
intent for an expedited determination of RTKL requests,” 54 and for disputes to be resolved
“in an efficient and timely fashion.”55 The law’s predecessors, the Right-to-Know Acts of
1957 and 2002, set forth no time limit within which an agency was bound to respond to a
request for disclosure, and appellate review was limited to determining whether an
agency’s denial was supported by “just and proper cause.”56 Requesters bore the burden
of demonstrating that a record was a “public record” and that they were entitled to see
it. 57 The General Assembly passed the RTKL in 2008, overhauling that process.
Agencies now bear the burden of proving an exception to the presumption that all records
53 The Dissent contends that we "[fail] to address” the fact that “this Court told” the
Commonwealth Court to do “exactly” what it did. See Dissenting Op. at 3.
We elucidate this Court’s statement in PSP II—which, importantly, did not
specifically instruct the Commonwealth Court to order additional fact-finding, but only
recognized that it retained the discretion to do so—by contrasting the expansive view that
the Dissent adopts with the way in which this discretion has been wielded in the foregoing
examples. Cf. PSP II, 232 A.3d at 665 (“[E]ven where broad discretion is granted, it may
be abused.”). As discussed below, if PSP had requested the opportunity for additional
fact-finding, our disposition today may have been different. See infra p.14. But PSP did
not.
54 Levy v. Senate of Pa., 65 A.3d 361, 381 (Pa. 2013).
55 Bowling II, 75 A.3d at 474. The Dissent reads Bowling II and Levy to stand for the
proposition that the RTKL “is designed to provide expedient transparency of non-exempt
records,” Dissenting Op. at 5 (emphasis in original), but this Court has made no such
distinction and we decline to make it here. The RTKL provides for the expedient
determination of all requests, regardless of their outcome.
56 See id. at 455 (discussing the progression from the RTKA to the RTKL).
57 Id.
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are public records. 58 Read together, various sections of the RTKL provide that parties
will see their requests “resolved or be before an appellate court within less than four
months [of] the initial filing of the request” (absent an agreed-upon extension). 59
The Commonwealth Court’s unsubstantiated remand significantly undercuts the
statute’s aims. First, its approach subjects requesters to the possibility of protracted
litigation whenever a court expresses pause about the potential effects of fulfilling the
RTKL’s command. ACLU rightly observes that “months or years of further proceedings”
may yet be in store before it obtains the record at issue. 60 This would be especially true
if, even after remand, the Commonwealth Court again finds itself “unable to determine
from the current record whether disclosure . . . would be reasonably likely to threaten
public safety or preparedness.” 61 Six years already have passed. If and when appellate
review is allowed to serve as a reset button based upon a court’s ill-defined policy
concerns, there is no limiting principle, and the judiciary’s claims to neutrality and ordered
decision-making vanish. The timely and efficient process that the General Assembly
designed cannot give way to a system in which well-resourced agencies encounter no
urgency to comply with the RTKL, while requesters deplete their coffers playing Sisyphus.
Second, the Commonwealth Court’s remand partially relieved PSP of its
statutorily-imposed burden to prove that an exception to the disclosure rule applies.
Nothing in the statute contemplates judicial action after it has been determined that an
agency did not carry its burden. The Commonwealth Court’s reasoning is eerily
reminiscent of the “just and proper cause” inquiry that the General Assembly discarded
when it enacted the RTKL. An agency’s attempt to prevent disclosure must succeed or
58 65 P.S. § 67.708(a)(1).
59 Levy, 65 A.3d at 381.
60 ACLU Br. at 18.
61 PSP III, 2021 WL 5356532, at *2-*4.
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fail on its own merits. If the Commonwealth Court could not “determine from the current
record whether disclosure of this section would be reasonably likely to threaten public
safety or preparedness,” 62 that simply means that PSP did not carry its burden. To
approve of the panel’s intervention into that inquiry would be to give preferential treatment
to one party over another. This Court cannot countenance such a result.
Had PSP requested the opportunity to supplement the record, and had the
Commonwealth Court granted that request, our disposition today might be different. The
record clearly demonstrates, though, that PSP steadfastly maintained its position that the
Burig Affidavit alone was sufficient to justify its redactions of AR 6-9. 63 Not once did PSP
seek the opportunity to introduce additional facts, nor did it identify additional facts that
would, if added to the record, support its decision.
Furthermore, it is axiomatic that “[s]ua sponte consideration of issues deprives
counsel of the opportunity to brief and argue the issues and the court of the benefit of
counsel’s advocacy.” 64 In other words, it “disturbs the process of orderly judicial decision-
making.” 65 This Court accordingly tolerates sua sponte action only in a narrow set of
circumstances, 66 and these are not among them. Our first remand to the Commonwealth
Court was PSP’s opportunity to supplement the record. PSP did not take that opportunity,
62 Id.63 See supra n.33.
64 Wiegand v. Wiegand, 337 A.2d 256, 257 (Pa. 1975).
65 Johnson v. Lansdale Borough, 146 A.3d 696, 709 (Pa. 2016).
66 See, e.g., Commonwealth v. Batts, 163 A.3d 410, 434 (Pa. 2017) (“A challenge to
the legality of a particular sentence may be reviewed . . . by an appellate court sua
sponte.”); Commonwealth v. Edmondson, 718 A.2d 751, 752 n.7 (Pa. 1998) (“[T]his Court
can raise the issue of waiver sua sponte . . .[.]”); LeFlar v. Gulf Creek Indus. Park No. 2,
515 A.2d 875, 879 (Pa. 1986) (“The lack of jurisdiction of the subject matter may be raised
at any time and may be raised by the court sua sponte if necessary.”).
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and the intermediate panel exceeded its authority in taking up the mantle of advocate and
doing so on PSP’s behalf.
Finally, Carey—which is non-binding on this Court in any event—is readily
distinguishable. There, the Commonwealth Court found that the “circumstances
present[ed] a uniquely suitable case for supplementation.”67 Evidence submitted by the
agency in question “did not describe the responsive records or connect the security threat
to them,” and there was an open question as to whether redaction would serve the
agency’s interests. 68 Here, PSP submitted the Burig Affidavit describing the responsive
records and attempting to connect the alleged security threat to them. AR 6-9 has already
been redacted. Thus, because Carey offers little guidance with respect to the
circumstances of this dispute, it need not be “disapproved.”69 Consistent with McKelvey 70
and Eiseman, 71 our decision today is grounded in faithful adherence to the structure of
the RTKL, and in the knowledge that PSP had every opportunity to justify its resistance
to disclosure.
The RTKL establishes that agencies bear the burden of proving that an exception
to the disclosure rule applies. As the Commonwealth Court recognized, PSP has not
carried that burden. 72 Nothing remains, then, but for the panel below to order that PSP
67 Carey, 61 A.3d at 377.
68 Id.69 ACLU Br. at 21-22.
70 255 A.3d at 404 (“We note that the Department received numerous opportunities
to submit evidence and argument before the OOR, and chose not to take advantage of
those opportunities.”).
71 125 A.3d at 29 (“[I]t contravenes th[e] salutary purpose [of the RTKL] for [an
agency] to advance shifting positions in opposing disclosure”).
72 PSP III at *5 (concluding that the Burig Affidavit is “insufficient to connect the text
of AR 6-9 with the risks [it] articulates”). The Dissent argues that the Commonwealth
Court’s authority in this instance “derived from this Court’s bestowal of broad fact-finding
(…continued)
[J-3-2023] - 15
provide ACLU with an unredacted copy of AR 6-9. We must, and we do, bring this six-
year quest for transparency to an end.
The order of the Commonwealth Court is vacated and the case is remanded for
proceedings consistent with this Opinion.
Chief Justice Todd and Justices Donohue and Dougherty join the opinion.
Justice Mundy files a dissenting opinion in which Justice Brobson joins.
discretion pursuant to the text and structure of the RTKL in Bowling II,” and it submits that
“the proper course of action would be to remand to the Commonwealth Court to make a
final determination based upon the record as it currently exists.” Dissenting Op. at 7. The
fact that the Commonwealth Court already has concluded that the Burig Affidavit is
insufficient to justify PSP’s redactions fatally undermines both points. Whether a record
is exempt from disclosure is indeed a factual question, see id. at 5 (quoting Bowling II, 75
A.3d at 476), but in light of the Commonwealth Court’s opinion in PSP III, it is no longer
an outstanding factual question. Furthermore, the Dissent’s proposed course of action is
perplexing because the Commonwealth Court has already made its determination “based
upon the record as it currently exists.” Id. at 7 n.7.
Relatedly, while the remand in Bowling II was not “at the behest of a party,” id., the
critical distinction remains that no court in that case had explicitly determined that the
agency’s proffered justification for redaction was insufficient.
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