Opinion
No. 44 MAP 2022
08-22-2023
PENNSYLVANIA STATE POLICE, Appellee v. AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA, Appellant
Elizabeth Mary Casey, Esq., Dorothy Alicia Hickok, Esq., Mark David Taticchi, Esq., Faegre Drinker Biddle & Reath LLP, Andrew Chapman Christy, Esq., ACLU, for Appellant. John Joseph Herman, Esq., Brendan Joseph O'Malley, Esq., Pennsylvania State Police, for Appellee. Jonathan Howard Feinberg, Esq., Kairys, Rudovsky, Messing, Feinberg & Lin, LLP, for Amici Curiae Alliance for Police Accountability, The National Police Accountability Project, Thomas Merton Center. Paula Knudsen Burke, Esq., Reporters Committee for Freedom of the Press, for Amici Curiae Pennsylvania NewsMedia Association, Reporters Committee for Freedom of the Press. Melissa Bevan Melewsky, Esq., Pennsylvania NewsMedia Association, for Amicus Curiae Pennsylvania NewsMedia Association.
Elizabeth Mary Casey, Esq., Dorothy Alicia Hickok, Esq., Mark David Taticchi, Esq., Faegre Drinker Biddle & Reath LLP, Andrew Chapman Christy, Esq., ACLU, for Appellant.
John Joseph Herman, Esq., Brendan Joseph O'Malley, Esq., Pennsylvania State Police, for Appellee.
Jonathan Howard Feinberg, Esq., Kairys, Rudovsky, Messing, Feinberg & Lin, LLP, for Amici Curiae Alliance for Police Accountability, The National Police Accountability Project, Thomas Merton Center.
Paula Knudsen Burke, Esq., Reporters Committee for Freedom of the Press, for Amici Curiae Pennsylvania NewsMedia Association, Reporters Committee for Freedom of the Press.
Melissa Bevan Melewsky, Esq., Pennsylvania NewsMedia Association, for Amicus Curiae Pennsylvania NewsMedia Association.
TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
OPINION
JUSTICE WECHT This appeal arises under the Right-to-Know Law ("RTKL"). 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.
Act of Feb. 14, 2008, P.L. 6, No. 3, 65 P.S. §§ 67.101 - 67.3104.
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 judicial order or decree," or exempt under Section 708 of the RTKL. The burden of proving that one of the Section 708 exceptions applies belongs to the Commonwealth agency that is resisting disclosure.
Id. § 67.708(a)(1).
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.
Id. § 67.708(b)(2).
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." In short, "the threats outlined in [the Burig Affidavit] simply do not match the text of the policy." Accordingly, OOR directed PSP to furnish ACLU an unredacted copy.
OOR Final Determination, 7/17/2017, at 5-6 (hereinafter, "O.F.D.").
Id. at 9.
PSP appealed, and a three-judge panel of the Commonwealth Court reversed. 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. 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 ."
Pa. State Police v. ACLU of Pa. , 1066 C.D. 2017, 2018 WL 2272597 (Pa. Cmwlth. May 18, 2018) (" PSP I ").
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) ).
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) ).
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. 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]." In granting PSP undue and sweeping 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." This Court vacated the Commonwealth Court's order and remanded the case for further proceedings.
ACLU of Pa. v. Pa. State Police , 659 Pa. 504, 232 A.3d 654, 669 (2020) (" PSP II ").
Id. at 670.
Id.
Following remand, the Commonwealth Court proceeded to conduct an in camera review of the unredacted version of AR 6-9. The court determined that the text of each section
Pa. State Police v. ACLU of Pa. , 1066 C.D. 2017, 2021 WL 5356532, at *2 (Pa. Cmwlth. Nov. 17, 2021) (" PSP III ").
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.
Id. at *2-*4.
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." The court recognized that, in general, "it is the burden of the party resisting disclosure to establish that an exemption from the RTKL applies." 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."
Id.
Id. at *4 (citing Pa. State Police v. Muller , 124 A.3d 761, 766 (Pa. Cmwlth. 2015) ).
Id.
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." 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." ACLU again petitioned this Court for allocatur , which we granted.
Id. at *5.
Id.
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." 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 Br. at 14.
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. 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 dramatically enlarging the time (and cost) required to secure a record's release in public safety cases." 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." 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.
Id. at 15-16 (emphases in original).
Id. at 17 (discussing Bowling v. OOR , 621 Pa. 133, 75 A.3d 453, 473 (2013) (" Bowling II ") (noting the General Assembly's "goal ... of ensuring swift determinations")).
Id. at 18.
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. We held that allowing the Department of Public Welfare to "advance shifting positions" would frustrate the RTKL's goals of timely disclosure. 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. 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. To the extent that Carey stands for the proposition that 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. 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."
633 Pa. 366, 125 A.3d 19, 29 (2015).
Id.
See ACLU Br. at 21-22.
See ACLU Br. at 21-22.
––– Pa. ––––, 255 A.3d 385, 404 (2021).
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. 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. 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 nevertheless must be consistent with the structure of the RTKL. 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.
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.").
See ACLU Br. at 22-23 (citing PSP briefs throughout this litigation).
232 A.3d at 671 ; ACLU Br. at 25.
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 . 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, 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. 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." PSP dismisses ACLU's concerns about agencies intentionally drafting affidavits that lack detail as "simple fearmongering."
PSP Br. at 11-12.
See Carey , 61 A.3d at 377.
PSP Br. at 15-16.
Id. at 17.
Id.
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." 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." Accordingly, PSP argues that it should be allowed the opportunity to further substantiate its position on remand.
Id. at 18 (citing PSP II , 232 A.3d at 664 ("[T]he RTKL has no analog in other administrative or quasi-judicial frameworks ... [.]")).
Id. at 19.
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. 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 .
Eiseman , 125 A.3d at 29.
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." 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, when an identified and relevant party did not have an opportunity to be heard below, where an agency summarily denied a fee waiver, and where the court identified evidence that should have been, but was not, considered. In other cases, it has remanded to correct a legal error, to allow OOR to address a legal question in the first instance, to allow an agency the opportunity to make limited redactions where it had not done so, and to instruct OOR to conduct in camera review. 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." It is not.
Bowling v. OOR , 990 A.2d 813, 822 (Pa. Cmwlth. 2010) (" Bowling I ") (citing Appeal of Borough of Churchill , 525 Pa. 80, 575 A.2d 550 (1990) ).
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 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").
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").
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[.]").
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]").
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 , 637 Pa. 337, 148 A.3d 142 (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).
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.").
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 , 640 Pa. 1, 161 A.3d 877 (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 nonthreatening to public safety").
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.").
PSP II , 232 A.3d at 671.
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 on a record that was "sufficient for judicial review" and—without naming any defect or 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.
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").
Bowling I , 990 A.2d at 822.
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 397.
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 pp.394–95. But PSP did not.
As this Court has recognized, "various provisions of the RTKL demonstrate an intent for an expedited determination of RTKL requests," and for disputes to be resolved "in an efficient and timely fashion." 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." Requesters bore the burden of demonstrating that a record was a "public record" and that they were entitled to see it. 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 are public records. 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).
Levy v. Senate of Pa. , 619 Pa. 586, 65 A.3d 361, 381 (2013).
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 399 (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.
See id. at 455 (discussing the progression from the RTKA to the RTKL).
Id .
Levy , 65 A.3d at 381.
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. 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." 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.
ACLU Br. at 18.
PSP III , 2021 WL 5356532, at *2-*4.
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 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," 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.
Id.
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. 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.
See supra n.33.
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." In other words, it "disturbs the process of orderly judicial decision-making." This Court accordingly tolerates sua sponte action only in a narrow set of circumstances, 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, and the intermediate panel exceeded its authority in taking up the mantle of advocate and doing so on PSP's behalf.
Wiegand v. Wiegand , 461 Pa. 482, 337 A.2d 256, 257 (1975).
Johnson v. Lansdale Borough , 637 Pa. 1, 146 A.3d 696, 709 (2016).
See, e.g. , Commonwealth v. Batts , 640 Pa. 401, 163 A.3d 410, 434 (2017) ("A challenge to the legality of a particular sentence may be reviewed ... by an appellate court sua sponte ."); Commonwealth v. Edmondson , 553 Pa. 160, 718 A.2d 751, 752 n.7 (1998) ("[T]his Court can raise the issue of waiver sua sponte ...[.]"); LeFlar v. Gulf Creek Indus. Park No. 2 , 511 Pa. 574, 515 A.2d 875, 879 (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.").
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." 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. 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." Consistent with McKelvey and Eiseman , 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.
Carey , 61 A.3d at 377.
Id.
ACLU Br. at 21-22.
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.").
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").
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. Nothing remains, then, but for the panel below to order that PSP 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.
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 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 399–400. 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 398 (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 400 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.
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.
JUSTICE MUNDY, dissenting
In this case, the Commonwealth Court, acting as the ultimate fact-finder under the Right-to-Know Law ("RTKL"), was tasked with determining whether the Pennsylvania State Police ("PSP") properly denied the American Civil Liberties Union's ("ACLU") request to disclose its AR 6-9 regulation, which sets forth PSP's policies and procedures for PSP personnel when using social media monitoring software. Following specific direction from this Court, the Commonwealth Court remanded this case to the Office of Open Records ("OOR") for further development of the record so that the court could fully and adequately perform that duty. There is no dispute that the Commonwealth Court possessed the discretionary authority to develop the record – in fact, this Court explicitly emphasized as much when we first remanded this case. Unlike the majority, I see no abuse of discretion in the Commonwealth Court's action and would affirm its decision.
Act of Feb. 14, 2008, P.L. 6 No. 3, 65 P.S. §§ 67.101 - 67.3104.
I begin where this Court last left off, which is critical to the issue before us today. The Commonwealth Court initially held that PSP satisfied its burden of establishing the public safety exception to the RTKL through the affidavit of Major Douglas J. Burig, the Director of PSP's Bureau of Criminal Investigations. Pa. State Police v. ACLU of Pa. , 1066 C.D. 2017, 2018 WL 2272597 (Pa. Cmwlth. May 18, 2018) (" PSP I "). On appeal, this Court then vacated the Commonwealth Court's order because the court did not conduct in camera review of AR 6-9. ACLU of Pa. v. Pa. State Police , 659 Pa. 504, 232 A.3d 654, 670-71 (2020) (" PSP II "). Specifically, this Court held that the Commonwealth Court abused its discretion for "overturning OOR's reasoned decision without conducting an equally careful inquiry[,]" and criticized the Commonwealth Court for "unnecessarily den[ying] itself the opportunity to conduct the fact-finding that the RTKL asks of it." Id . Remanding for further proceedings, this Court provided the following instruction:
The public safety exception is defined for purposes relevant here as: "A record maintained by an agency in connection with ... 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[.]" 65 P.S. § 67.708(b)(2).
But because the Commonwealth Court is the ultimate finder of fact under the RTKL, it would be inappropriate for us to step into its place. On remand, the court at a minimum should compare the [Burig] Affidavit to the provisions of the unredacted Policy that the Affidavit describes. In keeping with its authority under the RTKL, the court also retains discretion to further develop the record.
Id . at 671 (emphasis added).
Upon remand, the Commonwealth Court conducted the "equally careful inquiry" and fact-finding that this Court asked of it – it reviewed the document in camera and concluded that further development of the record was necessary to determine whether the document was exempt from disclosure. Pa. State Police v. ACLU of Pa. , 1066 C.D. 2017, 2021 WL 5356532 (Pa Cmwlth. Nov. 17, 2021) (" PSP III "). Now, according to the majority, declining to review the document in camera was insufficient fact-finding and an abuse of discretion, but seeking a clearer record was too much fact-finding and also an abuse of discretion. The breadth of a fact-finder's discretion cannot be so narrow. It is confounding that the majority deems it an abuse of discretion for the Commonwealth Court to follow the instructions we provided. Indeed, it was "the duty of [the Commonwealth Court], on remand, to comply strictly with our mandate[.]" Commonwealth v Tick, Inc. , 431 Pa. 420, 246 A.2d 424, 426 (1968). The Commonwealth Court was required to, and did, "proceed in a manner consistent with the views expressed in our opinion and in accordance with the terms of the statute[.]" Id .
The tension between the Commonwealth Court's commitment to this Court's directives from PSP II and the majority's decision today is apparent. I cannot see how the Commonwealth Court abused its discretion by doing exactly what this Court told it to do – a point that the majority fails to meaningfully address. It is with that backdrop in mind that I turn to the majority's analysis. It is well-settled that an abuse of discretion is not merely an error of judgment. The Commonwealth Court acting as "[t]he first reviewing court, exercising de novo review with a plenary scope of review, will abuse its discretion only when it overrides or misapplies the law; exercises manifestly unreasonable judgment; or manifests partiality, bias, or ill will." PSP II , 232 A.3d at 665. According to the majority, such an abuse occurred here "because [the Commonwealth Court's] 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 ." Maj. Op., at ––––. I do not agree.
First, the Commonwealth Court's decision was squarely based in the text and structure of the RTKL. In Bowling v. OOR , 621 Pa. 133, 75 A.3d 453 (2013) (" Bowling II "), this Court analyzed the RTKL in order to define the role of Chapter 13 courts and their scope of review. Most importantly for the present issue, we held that "Chapter 13 courts serve as fact-finders, [and so] these courts must be able to expand the record – or direct that it be expanded by the mechanism of remand to the appeals officer – as needed to fulfill their statutory function. " Id . at 476 (emphasis added). In defining that statutory function, we noted that, "the duty of an appeals officer or a Chapter 13 court is simply to determine whether the underlying agency correctly denied a requester access to a document under one of the statutory exceptions." Id . at 467 ; see also , PSP II , 232 A.3d at 664 (recognizing that Bowling II "identif[ied] the reviewing court as the ultimate finder of fact and grant[ed] it plenary authority to expand the record beyond that developed before OOR[.]"). Here, the Commonwealth Court, acting as the ultimate fact-finder, concluded that further development of the record was necessary in order to determine whether the PSP correctly denied access to AR 6-9 based upon the public safety exception. Specifically, the court required a fuller understanding of "the nature and degree of the risks [PSP] claim[ed were] inherent in the potential disclosure of the contents of AR 6-9." PSP III , at *5. The decision to remand and expand the record was precisely in line with the Commonwealth Court's role within the RTKL as defined by this Court in Bowling II .
The majority references Bowling v. OOR , 990 A.2d 813 (Pa. Cmwlth. 2010) throughout its opinion. For simplicity, I will refer to that case as Bowling I and this Court's decision on appeal from that case as Bowling II .
"Chapter 13 court" is the title given to the courts that review a RTKL decision of an OOR appeal officer, which are "the Commonwealth Court when the matter arises from a determination made by a Commonwealth agency, or to the court of common pleas when the matter arises from a determination made by a local agency." Bowling II , 75 A.3d at 458. The name is a reference to the chapter of the RTKL in which the courts’ duties are discussed. 65 P.S. §§ 67.1301 -1302. Here, the Commonwealth Court was the Chapter 13 court, as the matter arose from a determination made by a Commonwealth agency.
In fact, the majority concedes that the Commonwealth Court has properly exercised its authority to remand in a wide variety of circumstances, including "when there [are] outstanding questions of fact[.]" Maj. Op. at 391–92. However, according to the majority, "the Commonwealth Court in this instance identified no outstanding questions of law or fact" and "answered the ultimate question on a record that was ‘sufficient for judicial review[.]’ ". Id . at 393 (quoting Bowling I , 990 A.2d at 822 ). This conclusion is flawed. This Court has held that while the RTKL grants "wide discretion with respect to procedure, there appears to be little ‘discretion’ concerning whether a document may or may not be released to a requester[; e]ither the document falls under one of the specific exemptions, or it is a document that must be released." Bowling II , 75 A.3d at 467. As such, "the RTKL contemplates that the foundational question of whether a record or document is exempt from disclosure is a factual one." Id . at 476. Contrary to the majority's conclusion, the Commonwealth Court here did identify an outstanding question of fact, i.e. whether there was a connection between the text of the document and risks articulated in the agency's affidavit. PSP III , 2021 WL 5356532, at *5 ("the affidavit is insufficient to connect the text of AR 6-9 with the risks [Burig] articulates;" "because additional development of the record is necessary, we conclude that PSP should be given a further opportunity to explain the nature and degree of the risks[.]"). Similarly, the Commonwealth Court never answered the ultimate question whether the PSP correctly denied the request based on the public safety exception, but merely concluded that it needed more information to make that determination. Id . It is clear that, unlike the Commonwealth Court, the majority deems the record "sufficient for judicial review." Maj. Op. at 393 (quoting Bowling I , 990 A.2d at 822 ). However, a mere disagreement does not rise to an abuse of discretion. See , Morrison v. Com., Dept. of Public Welfare , 538 Pa. 122, 646 A.2d 565, 571 (1994) ("an abuse of discretion occurs not merely when the trial court reaches a decision contrary to the decision that the appellate court would have reached.").
Further, the majority's conclusion that the Commonwealth Court's remand undercuts the RTKL's aims is incorrect. See Maj. Op. at 393–94. I fully recognize that "various provisions of the RTKL demonstrate an intent for an expedited determination of RTKL requests." Id . (quoting Levy v. Senate of Pa. , 619 Pa. 586, 65 A.3d 361, 381 (2013) ). However, focusing exclusively on expediency does not give effect to the statute as a whole, which is designed to provide expedient transparency of non-exempt records. Allowing the reviewing court to conduct additional fact finding does not frustrate the goal of the RTKL, but rather, helps the reviewing court to give effect to the entire statute, including its exceptions. I emphasize again: "the duty of ... a Chapter 13 court is simply to determine whether the underlying agency correctly denied a requester access to a document under one of the statutory exceptions." Bowling II , 75 A.3d at 467. I find the majority's push for expediency particularly troublesome in a case, as here, where the agency raises a credible claim under the public safety exception. Where the potential risk is jeopardizing public safety, I would err on the side of caution and favor careful consideration rather than expediency.
Nevertheless, it is irrelevant that one jurist may favor expediency while another would favor diligence. At this juncture, the sole question is whether the Commonwealth Court abused its discretion in weighing of these dynamic goals of the RTKL.
The majority is also incorrect that the Commonwealth Court's remand was akin to sua sponte review and somehow relieved the PSP of its burden of proof. I am particularly troubled by this assertion where the issue of further development of the record was specifically directed by this court in our remand. See , PSP II , 232 A.3d at 670-71 ("The Commonwealth Court unnecessarily denied itself the opportunity to conduct the fact-finding that the RTKL asks of it. ... In keeping with its authority under the RTKL, the court also retains the discretion to further develop the record."). But that aside, the Commonwealth Court today did not sua sponte assess a new exception to the RTKL and remand for fact-finding. Following our directive, the Commonwealth Court properly assessed the issue before it – whether the document at issue satisfied the public safety exception – and concluded that further development of the record on that issue was necessary. Notably, when this Court interpreted the RTKL's provisions in Bowling II and concluded that chapter 13 courts are permitted to seek further development of the record, that ability "to expand the record" was not premised upon the request of a party. Bowling II , 75 A.3d at 476. In fact, in Bowling , the remand for supplementation of the record was never at the behest of a party, but an assessment by the Commonwealth Court that such supplementation was necessary to resolve the questions before it. Bowling I , 990 A.2d at 825. Along the same lines, the Commonwealth Court in no way relieved the PSP of its burden to prove that the exception applies. Although PSP has maintained that the affidavit alone is sufficient to meet its burden, the Commonwealth Court (again, acting as the ultimate fact-finder) concluded that to make a final determination it needed further development of one key fact – i.e. the nexus between the risks advised in the affidavit and the text of the document. On remand, it would remain PSP's burden to establish by a preponderance of the evidence that disclosure of the document risks public safety.
I also note that there was no time when the PSP realistically would have seen the need to request further fact-finding within this case's unique procedural history. Further, neither the RTKL nor our precedent suggest that the Commonwealth Court's ability to expand the record is dependent upon a request from a party.
In light of the above, I dissent. Unlike the majority, I believe the Commonwealth Court acted reasonably and well within its discretion in remanding for further development of the record. Their authority to do so derived from this Court's bestowal of broad fact-finding discretion pursuant to the text and structure of the RTKL in Bowling II . I fully recognize that such discretion is not unfettered, however the Commonwealth Court's decision here did not override or misapply the law. Their decision was particularly reasonable given this Court's guidance in PSP II . The majority's decision today cannot be reconciled with the fact that the Commonwealth Court did exactly what this Court authorized it to do. As such, I would affirm the Commonwealth Court's order.
As a final note, even accepting the majority's conclusion, I find it inappropriate for this Court to order the Commonwealth Court to order disclosure of AR 6-9. The present issue is not whether the document must be disclosed, but whether the Commonwealth Court appropriately sought further fact-finding. Assuming arguendo that the Commonwealth Court erred, 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. The majority suggests that there "is no longer an outstanding factual question." MO at 395-96 n. 72 1. However, as discussed supra , nowhere within the Commonwealth Court's decision did it definitively conclude whether this document was exempt from disclosure. PSP III , at *5 (concluding that the record was "insufficient to allow [the court] to determine whether disclosure of all provisions of AR 6-9 would provide specific tactical information that could reasonably be expected to aid criminals in evading detection from illegal activities."). As this Court previously held, "because the Commonwealth Court is the ultimate finder of fact under the RTKL, it would be inappropriate for us to step into its place." PSP II , 232 A.3d at 671.
Justice Brobson joins this dissenting opinion.