[J-72-2019] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
AMERICAN CIVIL LIBERTIES UNION OF : No. 66 MAP 2018 PENNSYLVANIA, : : Appeal from the Order of the Appellant : Commonwealth Court at No. 1066 : CD 2017 dated May 18, 2018 : Reversing the Order of the Office of v. : Open Records at No. AP 2017-0593 : dated July 7, 2017. : PENNSYLVANIA STATE POLICE, : ARGUED: November 19, 2019 : Appellee :
OPINION
JUSTICE WECHT DECIDED: June 16, 2020
The Right-to-Know Law (“RTKL”)1 “is designed to promote access to official
government information in order to prohibit secrets, scrutinize the actions of public
officials, and make public officials accountable for their actions.”2 In 2009, the General
Assembly enacted the RTKL, replacing its predecessor Right to Know Act with an
alternative paradigm that more strongly tilted in favor of maximizing transparency. 3
1 See Act of Feb. 14, 2008, P.L. 6, No. 3, 65 P.S. §§ 67.101, et seq. 2 Pa. State Educ. Ass’n v. Commonwealth, Dep’t. of Cmty. & Econ. Dev., 148 A.3d 142, 155 (Pa. 2016). 3 See Pa. State Police v. Grove, 161 A.3d 877, 892 (Pa. 2017); Levy v. Senate of Pa., 65 A.3d 361, 368 (Pa. 2013) (noting that the RTKL “significantly expanded public access to governmental records”). Accordingly, when resolving disputes regarding the disclosure of government records,
agencies and reviewing courts must begin from a presumption of transparency. Of sound
necessity, there are statutory exceptions to that presumption, one of which is at issue in
this case. But the Office of Open Records (“OOR”), which reviews appeals of agencies’
refusal to disclose documents pursuant to statutory exemptions, and courts reviewing
OOR’s decisions, must construe such exceptions strictly, lest they subvert the RTKL’s
purpose.4 In this case, the Commonwealth Court overturned OOR’s ruling directing
disclosure of a Pennsylvania State Police policy document, and it did so without
considering the entirety of the record upon which OOR based its decision. We agreed to
review the court’s self-imposed limitation upon its review of OOR’s decision. We hold
that the court abused its discretion. Thus, we vacate its ruling, and we remand.
In March of 2017, the American Civil Liberties Union (“ACLU”) filed a RTKL request
with the Pennsylvania State Police (“PSP”) seeking disclosure of PSP’s “complete, un-
redacted AR 6-9 regulation, which establishes policies and procedures for PSP personnel
when using social media monitoring software.” OOR Final Determination, 7/17/2017, at 1
(hereinafter, “O.F.D.”). On March 13, 2017, PSP provided the ACLU with “a heavily-
redacted nine-page document entitled ‘AR 6-9 Real-Time Open-Source-Based
Investigation and Research’” (hereinafter, “the Policy”). Id. at 1-2. The Policy comprised
ten sections numbered 9.01 through 9.10. Of these, only Section 9.01 (“Purpose”) was
entirely unredacted.5 Sections 9.03 (“Utilization of Real-Time Open Sources as an
4 See Pa. State Police v. Grove, 161 A.3d 877, 2017 (Pa. 2017). 5 PURPOSE The purpose of this regulation is to establish policies and procedures for the use of real-time open sources in crime analysis, situational assessments,
[J-72-2019] - 2 Investigative Tool”), 9.04 (“Authorization to Access Real-Time Open Sources and/or Real-
Time Open-Source Networks”), 9.05 (“Authorization Procedures for the Use of Online
Aliases and Online Undercover Activity”), 9.06 (“Deconfliction”), 9.07 (“Utilizing Real-Time
Open-Source Monitoring Tools”), 9.08 (“Source Reliability and Content”), and 9.10
(“Utilization of Real-Time Open Sources for Employment Background Investigations”)
were entirely redacted but for their titles. Sections 9.02 (“Definitions”) and 9.09
(“Documentation and Retention”) were redacted in part. In sum, the redactions obscured
approximately seven pages of the nine-page document.
PSP also provided the supporting verification of Kim Grant, the Deputy Agency
Open Records Officer for PSP, in which she cited what we will refer to as “the public
safety exception” as the basis for the redactions. Verification of Kim Grant, 3/13/2017,
at 1-2. That provision exempts from disclosure “[a] record 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.” 65 P.S.
§ 67.708(b)(2).
On April 3, 2017, ACLU filed an appeal and brief with the OOR, asserting that PSP
had not provided a sufficient basis for its invocation of the public safety exception. As
criminal intelligence, criminal investigations, and employment background investigations. The policies and procedures contained herein are not meant to address one particular form of real-time open source, but rather real-time open sources in general, as advances in technology will occur and new tools will emerge. Policy at 1 ¶9.01.
[J-72-2019] - 3 required by statute, an appeals officer6 was assigned. Id. § 67.1101(a)(2). The appeals
officer sent the parties a briefing schedule.
The ACLU’s OOR brief began by accurately reviewing the governing burdens and
standards, as provided by the RTKL and judicial decisions interpreting that statute. Under
the RTKL, “[a] record in the possession of a Commonwealth agency . . . shall be
presumed to be a public record” unless it is exempt under Section 708, protected by a
privilege, or exempt from disclosure under other federal or state law or regulation or a
judicial order. Id. § 67.305(a). Pursuant to Section 708, “[t]he burden of proving that a
record of a Commonwealth agency or local agency is exempt from public access shall be
on the Commonwealth Agency . . . by a preponderance of the evidence.” Id.
§ 67.708(a)(1).7
To date, ACLU noted, only the Commonwealth Court has translated the statutory
burden into an evidentiary test relative to the public safety exception. Under that test,
PSP must establish (1) that “the record at issue relates to a law enforcement or public
safety activity,” and (2) that “disclosure of the record would be ‘reasonably likely’ to
threaten public safety or a public protection activity.” Carey v. Pa. Dept. of Corrs., 61 A.3d
367, 374-75 (Pa. Cmwlth. 2013). Demonstrating reasonable likelihood “requir[es] more
than speculation.” Id. at 375. To establish such likelihood, the agency must submit
6 For ease of reference, for the balance of the opinion we refer to OOR and the appeals officer interchangeably as context warrants. 7 Although this Court has not defined the preponderance of the evidence standard in the RTKL context, we consistently liken the standard to “a more likely than not inquiry, supported by the greater weight of the evidence; something a reasonable person would accept as sufficient to support a decision.” In re Vencil, 152 A.3d 235, 246 (Pa. 2017) (cleaned up). The Commonwealth Court applies substantially the same definition in RTKL cases. See, e.g., Del. Cty. v. Schaefer, ex rel. Phila. Inquirer, 45 A.3d 1149, 1156 (Pa. Cmwlth. 2012).
[J-72-2019] - 4 specific evidence, and it may satisfy its burden by affidavit. Where it relies upon an
affidavit, it must “(1) include[] detailed information describing the nature of the records
sought; (2) connect[] the nature of the various records to the reasonable likelihood that
disclosing them would threaten public safety in the manner described; such that,
(3) disclosure would impair [the agency’s] ability to perform its public safety functions.”
Id. at 376. Merely citing the affiant’s experience and alleging a general risk of a threat to
public safety or an impairment of the agency’s public protection activities will not suffice.
See OOR Brief for ACLU at 2 (citing Harrisburg Area Comm. Coll. v. OOR, 2110 C.D.
2009, 2011 WL 10858088, at *7 (Pa. Cmwlth. May 17, 2011) (unpublished) (hereinafter
“HACC”)8).
ACLU contended that Ms. Grant’s affidavit failed to satisfy this burden, and
requested the opportunity to brief the matter further if PSP provided a supplemental
affidavit. Id. at 3 n.2. ACLU also suggested that it might be appropriate for OOR to review
the unredacted record in camera against any such affidavit. Id. at 3.
In its response, PSP explained the bases for its redactions as embodied in the
sworn affidavit of Major Douglas J. Burig, a twenty-two-year PSP veteran serving as the
Director of PSP’s Bureau of Criminal Investigation (hereinafter, “the Burig Affidavit” or “the
Affidavit”).9 Major Burig detailed his background and averred that disclosure of the
redacted information in the Policy “would jeopardize PSP’s ability to conduct criminal
8 The Commonwealth Court’s Internal Operating Procedures allow a party to cite an unreported and non-precedential decision of the Commonwealth Court for its persuasive value. See Pa. Code § 69.414(a). 9 The Director “oversee[s] Divisions responsible for intelligence gathering, specialized criminal investigation support units, complex criminal investigations, and drug investigations.” See Burig Affidavit at 1 ¶3.
[J-72-2019] - 5 investigations and other law enforcement activities it engages in to protect the public.”
Burig Affidavit at 2 ¶6. He then reviewed the redacted sections one by one, briefly
describing each section’s function and explaining in relatively general terms why he
believed that disclosure of the redacted material would impede law enforcement or
compromise public safety. Id. at 3-4 ¶¶7-13.
In reply, ACLU argued that the Burig Affidavit did not satisfy the stringent Carey
standard because it did not “tie each of [the] nine sections’ redactions to reasonable public
safety concerns.” OOR Reply Brief for ACLU at 2. Furthermore, other law enforcement
agencies publicly released their social media investigative policies (in one case, with
minimal redaction), which appeared to be “substantially similar” to the Policy. Id. ACLU
cited this as cause to question Major Burig’s assertions regarding the risks of disclosure.10
The appeals officer then sent the parties an email indicating that “this case would
benefit from a review of the records in camera.” Email, Jordan Davis to ACLU and PSP,
5/18/2017. He also asked whether either party objected to in camera review. Both parties
responded that they had no objection. See, e.g., Email, Nolan Meeks to Jordan Davis,
5/19/2017 (“PSP has no objection to the in camera review.”). PSP provided the
unredacted record for review in camera. Following review, and without a hearing,11 OOR
issued its final decision in ACLU’s favor.
10 To support this claim, ACLU attached to its OOR Reply Brief what it contended were parallel policy documents from the Philadelphia Police Department, the Salt Lake City Police Department, and the Orange County (California) Intelligence Assessment Center, all of which were publicly available with limited or no redactions. 11 OOR noted that, in reviewing an appeal, it “shall . . . [r]eview all information filed relating to the request. . . . The appeals officer may admit into evidence testimony, evidence and documents that the appeals officer believes to be reasonably probative and relevant to an issue in dispute.” O.F.D. at 3 (quoting 65 P.S. § 67.1102(a)(2)). OOR
[J-72-2019] - 6 OOR characterized the Policy as “describ[ing] best practices, authorization
procedures, purposes and limitations for PSP Troopers when using internet resources—
including, but not limited to, sites commonly described as ‘social media’ sites—in a
professional capacity.” O.F.D. at 4. OOR characterized PSP as contending that “the
disclosure of the record would be reasonably likely to threaten public safety because
knowledge of the restrictions and techniques under which PSP Troopers work could
permit third parties to more easily evade PSP’s online efforts and hinder PSP’s attempts
to investigate criminal matters or perform background checks.” Id. at 5. Acknowledging
Major Burig’s section-by-section account of the reasons for the redactions, OOR found
that “the essential thread of his argument is that a third party with possession of these
materials could use them to avoid PSP’s scrutiny online, gauge which platforms of
discussion PSP commonly uses, and craft strategies to render PSP unable to effectively
monitor their sources.” Id.
OOR also reviewed the Policy section by section, explaining in broad terms why,
as to each, the Affidavit’s claims regarding the likely effect of disclosure did not square
with the text of the redacted material. See id. at 6-9. But it suffices for our purpose to
focus upon OOR’s broader observations. In this regard, OOR prefaced its section-
specific analyses as follows:
[T]he authorizations and prohibitions contained in each section are generalized, permitting PSP to use various open-source tools whenever it suspects criminal activity. The processes described throughout 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. Where the policy does touch upon interaction
determined that the Burig Affidavit and the underlying unredacted record were sufficient to decide the matter. Id.
[J-72-2019] - 7 with outside parties, it merely prohibits PSP Troopers from breaking applicable laws in furtherance of their investigations.
Id. at 5-6. OOR expressed due regard for Major Burig’s expertise, and in no way
challenged his good faith, but found that “the threats outlined in [the Affidavit] simply do
not match the text of the policy.” Id. at 9. Thus, OOR directed PSP to provide the
unredacted Policy to ACLU. Id. at 10.
PSP filed a petition for review of OOR’s ruling in the Commonwealth Court
pursuant to 65 P.S. § 67.1301(a).12 After briefing closed, the court sua sponte ordered
OOR to supplement the certified record with the unredacted Policy, noting that “the
certified record on appeal shall consist of evidence an appeals officer considers when
making a determination, including records that OOR accepted under seal and that an
appeals officer reviewed in camera.” Cmwlth. Ct. Order, 4/2/2018, at 1 (citing Pa. Dept.
of Educ. v. Bagwell, 114 A.3d 1113 (Pa. Cmwlth. 2015)). However, the court ultimately
reversed OOR’s decision without reviewing the unredacted Policy. PSP v. ACLU, 1066
C.D. 2017, 2018 WL 2272597, at *6-7 (Pa. Cmwlth. May 18, 2018) (unpublished), slip op.
at 5.13
In its decision, the Commonwealth Court acknowledged the presumption in favor
of disclosure, that statutory exemptions from disclosure must be construed strictly, and
that the consequent burden of proving that a record qualifies wholly or in part for a
statutory exemption lies with the agency seeking its protection. Similarly, the court
invoked Carey’s two-part approach to determining the application of the public safety
12 PSP’s appeal automatically stayed release of the Policy pending the Commonwealth Court’s decision. See 65 P.S. § 67.1301(b). 13 All subsequent citations of the “Commonwealth Court Opinion” refer to the slip memorandum.
[J-72-2019] - 8 exception, inquiring whether: (1) the record relates to a law enforcement or public safety
activity, and (2) disclosure would be reasonably likely to threaten public safety or a public
protection activity. Cmwlth. Ct. Op. at 5. Because the Policy undisputedly related to
public safety, the only contested question concerned the likelihood that disclosure of the
unredacted Policy would threaten public safety or a public protection activity.
The court acknowledged that establishing the likelihood of a threat to the public
required more than mere “speculation,” but added that the agency is not required to
establish a definite threat. Id. (citing Woods v. OOR, 998 A.2d 665, 670
(Pa. Cmwlth. 2010)). Where an agency seeks to satisfy its burden by providing an
affidavit explaining how disclosure may risk public safety, the Commonwealth Court
examines whether the affidavit:
(1) includes detailed information describing the nature of the records sought; (2) connects the nature of the various records to the reasonable likelihood that disclosing them would threaten public safety in the manner described; such that (3) disclosure would impair the agency’s ability to perform its public safety functions in relation to what the agency claims to be the alleged threatening consequence.
Id. at 6 (quoting Carey, 61 A.3d at 376)) (cleaned up). In effect, establishing the exception
“depends on the level of detail in the supporting affidavit.” Id. (quoting Fennell v. Pa.
Dept. of Corrs., 1827 C.D. 2015, 2016, 2016 WL 1221838, at *2 (Pa. Cmwlth. Mar. 29,
2016) (unpublished)).
After briefly contrasting its decision in Woods with its ruling in HACC, supra,14 the
court turned to the Burig Affidavit. The court noted Major Burig’s extensive experience,
14 In Woods, the court held that the public safety exception applied to Board of Probation and Parole records concerning supervision strategies for sex offenders. See Woods, 998 A.2d at 670. In HACC, the court found that the affiant failed to establish an adequate basis for applying the public safety exemption to the agency’s DUI arrest
[J-72-2019] - 9 acknowledged his prefatory assertion that public release of the redacted sections would
jeopardize the effectiveness of PSP investigations in derogation of its public safety
function, and then reviewed his assertions in support of each of PSP’s redactions. But it
conducted this review in isolation, declining to compare it to the Policy itself. The court
took each of Major Burig’s assertions at face value and, on that basis, concluded that the
Affidavit “was legally sufficient to sustain PSP’s burden.” Id. at 10. The court noted that
“[w]here, as here, the affiant bases his conclusions that such harm [to public safety or a
public protection activity] is reasonably likely on his extensive experience, such
conclusion is not speculative or conclusory.” Id. at 11-12. Ultimately, the court found that
the Burig Affidavit satisfied Carey’s three-part test, showing “a nexus between the
disclosure of the information at issue and the alleged harm,” thus satisfying PSP’s burden.
Id. at 12 (quoting Fennell, 2016 WL 1221838, at *2).
In rejecting ACLU’s request that the court review the unredacted Policy in camera
to test the Affidavit’s consistency with the Policy, the court explained:
In addition to such review being unnecessary given the detailed nature of [the Affidavit], in general, where this [c]ourt has reviewed an unredacted document in camera, those situations usually have involved exemptions claimed under the attorney-client privilege or the predecisional deliberative process. See Twp. of Worcester v. OOR, 129 A.3d 44, 60 (Pa. Cmwlth. 2016) (stating in camera review is appropriate to assess claims of privilege and predecisional deliberations). However, as PSP argues, those
curriculum because the affidavit was conclusory in asserting that disclosure would jeopardize a public protection activity, providing insufficient detail as to how disclosure might cause such a result. See HACC, 2011 WL 10858088, at *7. In neither case did the court review the records in camera. Moreover, in finding an agency affidavit insufficient to carry the agency’s burden and vacating OOR’s order applying the public safety exemption, the HACC court remanded to OOR to reconsider its determination, noting that OOR had “a responsibility to develop a fuller record using the means granted to it in the RTKL, such as conducting a hearing or examining the subject records in camera.” Id. at *8. It so ruled specifically because the court “lack[ed] a sufficient record with which to conduct meaningful or effective appellate review.” Id.
[J-72-2019] - 10 situations are distinguishable. There, the actual words on the page are key to the determination, whereas here, it is the effect of the disclosure that is key. In other words, here, the actual words on the page are not at issue; rather, the issue is whether disclosure of those words “would be ‘reasonably likely’ to threaten public safety or a public protection activity.” As stated, Major Burig’s Affidavit sufficiently addresses that issue.
Id. at 13 (cleaned up; emphasis added).
In sum, the Commonwealth Court ruled that, where the effect of a disclosure is at
issue, as it is with the public safety exception, an agency expert’s affidavit is unassailable
if it complies facially with the Carey standard and exhibits no indication of bad faith. Thus,
the affidavit succeeds or fails based solely upon its contents. We granted review to speak
to this and related issues.15
As described above, when an agency denies a record request under the RTKL in
whole or in part (i.e., subject to redactions), the requestor may file an appeal with OOR.
15 Our order granting allowance of appeal recited the issues as stated by ACLU: a. Did the Commonwealth Court err in holding that the use of in camera review is inappropriate when the public-safety exemption is claimed and should be reserved for cases involving assertions of attorney-client privilege, the work-product protection, and the predecisional-deliberation exception? b. Given the standard understanding of plenary review, did the Commonwealth Court err when it reversed the OOR findings of fact without reviewing all of the evidence that OOR reviewed to make those findings? c. Did the Commonwealth Court err in finding that the Burig Affidavit, on its face, provided sufficient evidence of a threat to public safety to justify each of the redactions to PSP’s social media-monitoring policy—including the redaction of the “definitions” section and the provisions regarding social- media research on prospective employees? PSP v. ACLU, 198 A.3d 336 (Pa. 2018) (per curiam). Our resolution of the first two issues makes it unnecessary to reach the third, which will be a matter for the Commonwealth Court to consider on remand. The Dissent appears to criticize us for “focus[ing] on the reviewing tribunal’s scope of review,” “[r]ather than address[ing] the sufficiency of the Burig Affidavit.” Diss. Op. at 5. But the former question clearly was the central concern as to which we granted allowance of appeal.
[J-72-2019] - 11 OOR then assigns an appeals officer to review the denial. See 65 P.S. §§ 67.1101(a)(1)-
(2). OOR has thirty days following receipt of the appeal to issue its final determination,
and the appeals officer has discretion to hold a hearing before issuing his determination.
OOR shall provide a written explanation of the reason for the decision. Id.
§§ 67.1101(b)(1), (3).
Upon receipt of OOR’s decision regarding a state-level agency record, the
aggrieved party may file a petition for review as a matter of right to the Commonwealth
Court. Id. § 67.1301(a). “The record before [the reviewing] court shall consist of the
request, the agency’s response, the appeal filed under section 1101, the hearing
transcript, if any, and the final written determination of the appeals officer.” Id.
§ 67.1303(b). “The decision of the court shall contain findings of fact and conclusions of
law based upon the evidence as a whole. The decision shall clearly and concisely explain
the rationale for the decision.” Id. § 67.1301(a).
Because ACLU has framed its challenge partially in terms of the scope and
standard of review that apply to RTKL appeals in the Commonwealth Court, and because
this Court addressed that subject at length in Bowling v. Office of Open Records, 75 A.3d
453 (Pa. 2013), we begin our analysis by reviewing that case. In Bowling, this Court
examined the Commonwealth Court’s standard of review of challenges to OOR decisions.
After comparing the unusual, single-tier administrative adjudicative regime applicable
under the RTKL and enumerating the RTKL’s many departures from more conventional
administrative processes, we concluded that a court reviewing an appeal under the
RTKL—in this case, the Commonwealth Court; in other cases the Court of Common
[J-72-2019] - 12 Pleas16—is “the ultimate finder[] of fact and that [it is] to conduct full de novo reviews of
appeals from decisions made by RTKL appeals officers, allowing for the adoption of the
appeals officer’s factual findings and legal conclusions when appropriate.” Bowling, 75
A.3d at 474. Thus, while the reviewing court need not feign blindness itself to any factual
findings OOR recited to support its ruling, the court owes such findings no peculiar
deference, as might be due in reviewing administrative decisions in other contexts. See
generally id. at 470.
The Bowling Court also addressed the correct scope of review to apply to OOR
determinations, noting that “‘[s]cope of review’ refers to the confines within which an
appellate court must conduct its examination, i.e., the ‘what’ that the appellate court is
permitted to examine.” Id. (quoting Holt v. 2011 Legislative Reapportionment Comm’n,
38 A.3d 711, 728 (Pa. 2012)). The RTKL’s lone provision on the subject specifies that
“[t]he record before [the reviewing] court shall consist of the request, the agency’s
response, the appeal filed under section 1101, the hearing transcript, if any, and the final
written determination of the appeals officer.” 65 P.S. § 67.1303(b). The two scope-
related questions that the Bowling Court considered were: (1) whether the record
transmitted by OOR should include only those items mentioned, but nothing else OOR
might have considered in rendering its decision; and (2) whether the reviewing court had
discretion to expand upon the record it received in furtherance of its function as the
ultimate finder of fact. Bowling, 75 A.3d at 462.
16 OOR decisions pertaining to local agency records are appealable as of right to the Court of Common Pleas for the county where the agency is located. See 65 P.S. § 67.1302(a).
[J-72-2019] - 13 As to the first question, this Court noted the parties’ agreement that the reviewing
court should receive the entirety of OOR’s evidence, offering the following explanation:
We believe that the Legislature intended the record to be certified to this Court pursuant to Section 1303(b) to include evidence and documents admitted into evidence by the appeals officer. To hold otherwise—that the record certified to this Court should not contain relevant, probative evidence considered by the OOR—would be an absurd reading of Section 1303(b). See 1 Pa.C.S. § 1922(1) (stating ‘the General assembly does not intend a result that is absurd, impossible of execution or unreasonable’). It would also frustrate appellate review of the determination to exclude from this Court’s review the evidence that was before the appeals officer.
Id. at 476 (quoting Dept. of Transp. v. Office of Open Records, 7 A.3d 329, 333-34
(Pa. Cmwlth. 2010)) (cleaned up). Relatedly, while we recognized that the reviewing
court is the ultimate finder of fact, we also recognized by implication that OOR exercises
a fact-finding function in the first instance, or it would make no sense to grant the
reviewing court the option of adopting an appeals officers’ findings of fact in any case.
See id. at 474.
As to the second question, citing various RTKL provisions involving secondary
fact-finding that only a reviewing court could make, we held that the reviewing court also
may expand the record to fulfill its statutory role as the ultimate finder of fact. Id. We
described these two conclusions in tandem as granting the reviewing court “the broadest
scope of review.” Id. at 477. Thus, whatever facts OOR finds, they do not bind the
reviewing court and are not entitled to deference on appeal.
The Bowling Court also noted that, speaking generally, the scope of review may
expand or contract according to the reasons the lower tribunal gives for its holding,
focusing in particular on the context of an appeal from a trial court order granting a new
trial. The Court noted that, if the court granting a new trial cites finite and specific reasons
for its ruling, the appellate court must consider the adequacy of those reasons specifically.
[J-72-2019] - 14 However, where a trial court provides no such reason, the court must expand its review
to the entire record to determine whether any reason of record supports the ruling. Thus,
while the appellate court’s standard of review remained invariant, the portions of the
record it might consider, i.e., the scope of its review, varied according to the trial court’s
proffered reasoning, if any. See id. at 474-76.
The question in this case concerns whether the reviewing court, reviewing the case
de novo subject to the broadest, or “plenary,” scope of review, must consider the entirety
of the record that OOR relied upon in reaching its decision. ACLU maintains that the
Commonwealth Court erred in disregarding the unredacted Policy when reversing OOR,
because OOR relied upon that Policy in reaching its decision. PSP, conversely, insists
that the facial sufficiency of the affidavit alone controls the outcome such that the court
had no obligation, and indeed no cause, to consider the Policy.
Neither the RTKL nor Bowling clearly answers this question, but Bowling offers
guidance. In particular, the Bowling Court noted the absurdity of denying the reviewing
court access to any evidence of whatever kind that OOR considered in reaching its
decision, explaining that it would “frustrate appellate review of the determination to
exclude from this Court’s review the evidence that was before the appeals officer.” Id.
at 476. However, in simultaneously extolling the reviewing court’s obligation to address
an RTKL appeal de novo, Bowling revealed a difficulty inherent in the structure of RTKL
review. In identifying the reviewing court as the ultimate finder of fact and granting it
plenary authority to expand the record beyond that developed before OOR, Bowling’s
account of the RTKL imbues the reviewing court with a dual role implicating functions
associated with both trial and appeal in conventional legal settings. It is, as this Court
[J-72-2019] - 15 noted in Bowling, absurd to suggest that an appellate court, as such, should be denied
access to the entirety of the record considered by the decision-maker subject to review.
But it is less so if the reviewing court is functioning more as a trial court in considering a
case de novo. And this Court indicated in Bowling that the reviewing court may choose
to adopt OOR’s factual findings and legal conclusions, a curious suggestion if the
reviewing Court, functioning more like a trial court, is understood to be starting from
scratch.
There is no easy way to unpack this, and the parties offer only limited guidance.
As in Bowling, we confront a question that is thorny precisely because the RTKL has no
analog in other administrative and quasi-judicial frameworks, and the RTKL does not
conclusively address the matter. That being said, even if we recognize that the court is
reviewing OOR’s previously-made decision, we need not then hold that the reviewing
court commits an error of law simply because it declined to take into account any given
piece of evidence that OOR sought, admitted, or considered. In the more common trial
court-appellate court setting, an appellate court is not bound to review every piece of
evidence that the trial court received or cited. Rather, it considers only that which it deems
necessary to render a decision, a calculation that varies and which lies in the reviewing
court’s sound discretion—bound, of course, by the applicable scope and standard of
review.
We discern no basis to rule otherwise in this case. As noted in Bowling, it would
be untenable to deny a reviewing court access to the entirety of the record presented to
OOR. But it would be equally unreasonable to deny the reviewing court—especially here,
as the ultimate finder of fact—the discretion to determine what evidence is relevant in any
[J-72-2019] - 16 given case. Recognizing such discretion as part and parcel of the fact-finding function,
however, comes with its own limitation; even where broad discretion is granted, it may be
abused.
Imposing an abuse of discretion standard upon a court reviewing an OOR
determination preserves ample latitude for that reviewing court under the RTKL to tailor
its approach and analysis to the needs of a given case, honoring both its trial-like and
appellate-like functions. But on appeal of the reviewing court’s decision—in the case at
bar, in this Court by permission; in case of a local agency decision, in the Commonwealth
Court following de novo review by the Court of Common Pleas—the appellate court must
review the lower court’s decision for an abuse of discretion. The 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. See Van Dine v. Gyuriska, 713 A.2d 1104, 1105
(Pa. 1998).
Against this backdrop, we can address the substantive question concerning
whether the Commonwealth Court erred or abused its discretion in reversing OOR’s
decision without comparing Major Burig’s affidavit to the unredacted Policy, effectively
taking Major Burig at his word that disclosure of the redacted material would imperil public
safety or impair PSP’s investigative work.
ACLU notes that this Court held in Bowling that “the foundational question of
whether a record or document is exempt from disclosure is a factual one.” Bowling,
75 A.3d at 476. While in most adjudicative contexts, factual questions are resolved
following an adversarial presentation before a neutral fact-finder, this traditional
[J-72-2019] - 17 mechanism is unavailable in RTKL disputes because the requestor lacks access to the
record in question when litigating the question of access. Thus, ACLU could not “directly
join issue with the Burig [A]ffidavit” before OOR because it could not speak to the
accuracy of Burig’s characterization of the record or rebut his account of the likely effect
of its full disclosure. Brief for ACLU at 15.
ACLU submits that the “principal counterweights to this structural imbalance are
(1) the presumption of disclosure; and (2) the ability of the [OOR] Appeals Officer to
review the records in camera” to consider, where warranted, the accuracy of the affiant’s
descriptions and “the nexus between the consequences described in the affidavit and the
text of the record itself.” Id. ACLU notes that this Court has spoken favorably of in camera
review as an appropriate check under the RTKL’s predecessor, the Right to Know Act.
See LaValle v. Office of Gen. Counsel, 769 A.2d 449, 458 n.14 (Pa. 2001) (noting, without
deciding, that “sound policy would appear to support the availability of an in camera
procedure, where appropriate, and perhaps, in some circumstances, its requirement upon
proper demand”); see also Commonwealth, Office of Open Records v. Center Twp., 95
A.3d 354, 366-67 (Pa. Cmwlth. 2014) (citing Lavalle and opining that “in camera review
provides an essential check against the possibility that a privilege may be abused”).17
17 In a Dissenting Statement to this Court’s denial of allowance of appeal in Schenck v. Township of Center, Butler County, 975 A.2d 591 (Pa. 2009) (Saylor, J., dissenting), two justices took a favorable view of in camera review to ensure that exceptions to the RTKL are properly invoked. Now-Chief Justice Saylor took care to note that “government bodies should be afforded a presumption of good faith,” id. at 597, but, citing LaValle, espoused the value of in camera review as a hedge against accepting ipse dixit affidavits as sufficient on their face to sustain an exception. See id. at 599 (“As to the availability of in camera review, I agree with the many jurisdictions that have had little difficulty recognizing the availability of such a procedure in the discovery and public disclosure arenas.”).
[J-72-2019] - 18 ACLU also concedes that “[t]here may be some instances when it is easy to determine
whether the affiant has correctly described the record at issue.” Brief for ACLU at 16.18
Where it is not “easy,” however, “in camera review is the only way for a reviewer to know
whether the affiant has described the document accurately.” Id.
ACLU does not dispute that the opinions of agency affiants are entitled to
“substantial respect,” but it contends that such respect “does not nullify the statutory duty
to ‘find’ the ‘facts.’” Id. It stands to reason that an affiant supporting a given exemption
will naturally incline toward “shielding the contents of the disputed record,” creating “a
significant risk that the affiant’s description will be imprecise, incomplete, or overly
generalized,” none of which may be clear simply upon review of the affidavit in isolation.
Id.
There can be no question that law enforcement agencies require the ability to
protect documents that would reveal methods, protocols, identities, and other information
the secrecy of which is essential to the agencies’ ability to ensure public safety. Thus,
even while construing the public safety exception strictly, courts should proceed with care
not to narrow its application so much that public safety is compromised. Courts certainly
may grant some degree of deference to law enforcement agencies’ opinions regarding
how disclosure of a given document might have such an effect, just as they may attend
carefully to the conclusions of credible and duly qualified experts in any case. But courts
should not defer so utterly to those opinions that a law enforcement agency’s discretion
18 See Reply Brief for ACLU at 5 (“To be sure, other affidavits, dealing with other records and arising in the circumstances of other cases, could certainly be drafted so as to satisfy on their face the agency’s burden.”).
[J-72-2019] - 19 to cabin its disclosure obligation is only as limited as its ability to fashion an affidavit that
ticks off Carey’s three boxes.
The competing concerns for public safety and transparency converge under the
RTKL to create a dilemma that implicates core principles underlying our adversarial
system of justice, in which two antagonists, each with full access to the information
supporting their competing theories of a given controversy, present their strongest case
on the law and the facts to a neutral arbiter. Under the RTKL, where the agency in
possession of a record invokes an exception, only the agency has access to the record.
Since the character of the record directly or indirectly determines the applicability of an
exemption, the requesting party has the unenviable task of blindly countering the
agency’s attempt to persuade OOR that an exception applies.19
The Supreme Court of Michigan, reviewing its own state Freedom of Information
Act (“FOIA”), aptly described the problem and suggested solutions:
Where one party is cognizant of the subject matter of litigation and the other is not, the normal common-law tradition of adversarial resolution of matters is decidedly hampered, if not brought to a complete impasse. If one adds to this the natural tendency of bureaucracies to protect themselves by revealing no more information than they absolutely have to, it is clear that
19 The essential intractability of this situation can be gleaned from the Commonwealth Court’s own decision viewed in tandem with PSP’s argument. In rejecting ACLU’s argument, the court deemed it irrelevant that other law enforcement agencies’ similar policies had been released as well as the substance of those policies. See Cmwlth. Ct. Op. at 12 n.7 (“We cannot assume that the language [of the other jurisdictions’ policies] is . . . substantially similar to the redacted portions of AR 6-9, and what other police departments do with respect to releasing their policies is irrelevant to the present case.”). But PSP suggests that “ACLU was free to submit an affidavit from its own expert,” offering that, while such an expert “may not have been able to provide testimony specific to the redacted information in AR 6-9, the expert could have testified regarding these types of policies generally and opined on whether disclosure would jeopardize public safety.” Brief for PSP at 20 n.7. But if the three exempla of such policies were irrelevant to the court, then it seems clear that no expert report or testimony on ACLU’s behalf that was based upon any such policy would have affected the lower court’s decision.
[J-72-2019] - 20 disclosure becomes neither automatic nor functionally obtainable through traditional methods.
The practical aspect of the matter is adverted to in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). This is how that court saw the matter:
This lack of knowledge by the party seeking disclosure seriously distorts the traditional adversary nature of our legal system’s form of dispute resolution. Ordinarily, the facts relevant to a dispute are more or less equally available to adverse parties. In a case arising under the [federal] FOIA this is not true, as we have noted, and hence the typical process of dispute resolution is impossible. In an effort to compensate, the trial court, as the trier of fact, may and often does examine the document in camera to determine whether the Government has properly characterized the information as exempt. Such an examination, however, may be very burdensome, and is necessarily conducted without benefit of criticism and illumination by a party with the actual interest in forcing disclosure.
****
[Vaughn, 484 F.2d at 824-25.]
Under these circumstances the courts are challenged to find some way to compensate the inherent problems of (1) only the government knowing what is in the requested documents, (2) the natural reluctance of the government to reveal anything it does not have to, and (3) the fact that courts normally look to two equally situated adversarial parties to focus and illuminate the facts and the law.
Evening News Ass’n v. City of Troy, 339 N.W.2d 421, 437 (Mich. 1983) (cleaned up).
Notably, the Michigan Supreme Court’s solution to these concerns went somewhat
farther than ACLU requests here. In addition to requiring a detailed, particularized
justification for the invocation of privilege or exemption, the court also prescribed in
camera review to consider the persuasiveness of the justifications, and, in some
instances, that the agency grant the requestor’s counsel access to the unredacted
documents under “special agreement.” Id. at 437-38. Here, ACLU does not seek a per
se rule requiring in camera review in all cases, nor does it request that its attorneys be
allowed to examine the unredacted document subject to “special agreement.” ACLU
[J-72-2019] - 21 argues only that the Commonwealth Court erred in reversing OOR’s decision, which was
based upon the appeals officer’s in camera review, without first conducting its own in
camera review.
PSP argues that expert testimony is necessary, and for all intents and purposes
dispositive, where the relevant assessment entails speculation about the likely effect of
disclosure upon public safety. So strong is PSP’s position that it attempts to distinguish
OOR’s review of an agency affidavit from the very fact-finding function itself, contending
that “in camera review is reserved for circumstances where there is something to be
factually determined.” Brief for PSP at 18. If no facts need be determined when an expert
affidavit has been submitted, then perforce the affidavit is the fact.
PSP acknowledges that experts typically are used to assist triers of fact in
comprehending matters involving specialized skill, study, or experience unfamiliar to the
layperson in furtherance of their fact-finding function. Id. at 19. PSP also notes that the
Burig Affidavit in this case served that purpose for OOR, and then the Commonwealth
Court, in assessing whether public safety would be adversely affected by disclosure. PSP
then concedes that OOR and the Commonwealth Court were free to accept or reject
Major Burig’s opinions. Id. at 19-20. But PSP insists that they may do so based only on
whether the affidavit is sufficient on its face. If it hits all the necessary marks under the
Carey test, it is presumptively unassailable.20 Id. at 21.
Finally, PSP disputes ACLU’s reliance upon cases such as Commonwealth ex rel.
District Attorney of Blair County, 880 A.2d 568 (Pa. 2005), in which this Court remanded
20 In light of this predominating aspect of its argument, it seems odd that PSP did not object to OOR’s request for the unredacted document, despite OOR’s express invitation.
[J-72-2019] - 22 to the trial court with direction to determine whether releasing an autopsy report submitted
in that case could hinder or jeopardize an ongoing investigation, and specifically added
that the trial court had discretion to review the report in camera for that purpose. Id.
at 577-78. PSP attempts to distinguish that case on the basis that the trial court’s broad
discretionary authority in that context has no equal under the RTKL, because
“discretionary decision-making under the RTKL [only arises] where a determination must
be made regarding conflicting evidence pertaining to whether a document falls under one
of the statutory exceptions.” Brief for PSP at 20-21 (quoting Bowling, 75 A.3d at 467).
Here, PSP adds, “there was no conflicting evidence” because the Burig Affidavit was the
only evidence admitted as to the effect of disclosure. Again, PSP asks us to rule that,
where a Carey-compliant affidavit has been submitted, the averments it contains
regarding the probable effect of disclosure must be taken as true. Id. at 21.
PSP relies for its sweeping proposition principally upon the Commonwealth Court’s
“words on the page” versus “effects” dichotomy. But the court’s reasoning in this regard
was briefly stated, and cited only one of its own decisions to support its attempt to
distinguish effects evidence from words on the page evidence, Township of Worcester,
supra. The Worcester court merely determined that in camera review was appropriate to
determine whether the pre-decisional deliberative privilege21 applied. It did not hold that
in camera review may not be relied upon to test the applicability of anything but a privilege
that hinges only upon the words in the document rather than the probable effect of
disclosure.
21 See 65 P.S. § 67.708(b)(10)(i)(A).
[J-72-2019] - 23 Even if it were possible to discriminate reliably between records where an
exemption depends solely upon the words on the page without consideration of the
effects of disclosure (a dubious proposition at best), broader judicial practice nonetheless
undermines the next premise in the Commonwealth Court’s analysis, that only an expert
is competent to assess such effects. Fact-finders without special expertise, including lay
jurors from all walks of life with varying degrees of education and professional experience,
routinely must digest complex, competing expert evidence, sometimes spanning weeks
of testimony from dozens of experts, and draw detailed factual conclusions in subject
areas far more esoteric than assessing the likelihood that a given disclosure of law
enforcement investigative protocols will have a proposed effect. And here, of course, lay
jurors are not the fact-finders in question. In their place we have experienced OOR
appeals officers and seasoned jurists.
As ACLU notes, Pennsylvania courts routinely rely upon—and this Court has
blessed—in camera review to assess the application of various privileges, including
where anticipated effects of disclosure are critical elements of the determination.22 Thus,
the proposition that OOR appeals officers and courts lack competency to assess the
adequacy and probity of an agency affiant’s characterization of the record or the credibility
of its effects assessment is untenable. Nothing in the RTKL requires that conclusion, and
22 See, e.g., Dist. Attorney of Blair Cty., 880 A.2d at 569 (in camera review of an autopsy report to determine whether release would interfere with an ongoing criminal investigation); Commonwealth v. Natividad, 200 A.3d 11 (Pa. 2019) (in camera review of drug use and mental health records to determine whether disclosure would invade witness’s privacy); Octave ex rel. Octave v. Walker, 103 A.3d 1255 (Pa. 2014) (in camera review of mental health records to balance privacy interests against interests of justice in disclosure). While these cases clearly are inapposite to this case, they all, to some degree, require a subjective assessment of the effects of a given disclosure.
[J-72-2019] - 24 especially where the agency already benefits from the inevitable cant in its favor that
arises from having its evidence untested by countervailing evidence or informed cross-
examination, it suffers no unreasonable burden in submitting to an adjudicative body’s in
camera review and credibility assessment.
Furthermore we agree with ACLU that the Commonwealth Court’s ruling
“eliminates one of the key structural features of the current RTKL process and creates a
de facto presumption of non-disclosure in virtually all cases in which the public-safety (or
another ‘effects’ exception) is at issue.” Brief for ACLU at 17. The court’s ruling manifestly
diminishes the burden that the General Assembly imposed upon agencies seeking to
withhold documents from public scrutiny. And Carey provides an agency affiant clear
guidance on how to shape an affidavit to maximize the likelihood that a court will deem it
sufficient to support the exemption invoked.
We also reject PSP’s suggestion that one who seeks an in camera comparison of
an agency affidavit to the underlying document must successfully challenge the integrity
or veracity of an affiant opining against disclosure. PSP cites a number of Commonwealth
Court decisions in which the court appeared to suggest that only where the veracity or
good faith of an agency affiant can be questioned may an affidavit be discredited. See
Cal. Univ. of Pa. v. Schackner, 168 A.3d 413, 418 (Pa. Cmwlth. 2017); McGowan v. Pa.
Dep’t of Envtl. Prot., 103 A.3d 374, 382-83 (Pa. Cmwlth. 2014). While both cases allude
to a generalized assumption of government agents’ good faith, in neither case did the
question concern the substantive accuracy or rigor of a given affiant’s characterization of
the content or effect of a document requiring a subjective assessment or conjecture. In
Schackner, the reference concerned allegations that an agency would deliberately and in
[J-72-2019] - 25 bad faith delay submission of requests in a fashion that caused undue delay in requests’
resolution. In McGowan, a case involving the pre-decisional deliberative privilege, the
issue was whether the good faith of the agency could be questioned because the affidavit
in support of the privilege disclaimed knowledge of the precise date that the record was
created.
In keeping with this aspect of its argument, PSP charges ACLU with basing its
arguments upon challenges to Major Burig’s veracity and good faith, even though ACLU
has said nothing at any time in these proceedings that might reasonably be construed as
calling into question Major Burig’s integrity or intent. Compare Brief for PSP at 12
(“ACLU’s arguments amount to a thinly veiled attack on the credibility or veracity of the
affidavit.”) with Reply Brief for ACLU at 4 (“Major Burig’s veracity and credibility are not
the subject of this appeal; a person can speak truthfully and still say too little.”). ACLU’s
argument in no way relies upon any such inference. But it is in the very nature of the
adversarial system that opposing parties present their strongest cases to maximize their
chances of receiving a favorable ruling. Provided they do so within the applicable ethical
bounds and in accord with statutory prescriptions and rules of procedure, zealous
advocacy is not only tolerated, it is expected. An agency staff member called upon to
advance a basis for applying an RTKL exception can only be expected to do so in the
way best suited to achieve that result, tailoring it to satisfy whatever requirements are
provided by legal counsel and the law itself, or have been gleaned from the affiant’s
professional experience. As the Commonwealth Court noted in Center Township, “in
camera review provides an essential check against the possibility that a privilege may be
abused.” 95 A.3d at 367.
[J-72-2019] - 26 The RTKL requires the Commonwealth Court to document findings of fact to
support its ruling. But the court in this case did so only to the extent it accepted the
contents of a wholly untested affidavit, necessarily vague by virtue of the limitations of
what Major Burig could say without giving away too much, without availing itself of the
readily available opportunity to measure the affidavit against its subject document, which
the court had in its possession. The deference the Commonwealth Court granted PSP in
this case operated as a presumption against disclosure that is irreconcilable with the
RTKL. Where a court declines to review a challenged document in camera based upon
the supposition that an agency affiant has accurately assessed the likely effect of a given
disclosure simply because there is no facial evidence of bad faith—especially where OOR
has conducted such a review and found the affidavit wanting under the governing
standard—it simply cannot be said that the court exercised sound discretion.
We do not gainsay the importance of proceeding cautiously when confronted with
credible invocations of the public safety exception. But nothing in the record suggests
that OOR was incautious. To the contrary, OOR appears to have considered each
redacted section carefully against Major Burig’s assertions in support of the redactions
and reached reasoned conclusions that it documented in a thorough final determination.
Indeed, OOR’s individualized discussions of Major Burig’s assertions were as detailed as
the affidavit itself.
We hold only that the Commonwealth Court erred in overturning OOR’s reasoned
decision without conducting an equally careful inquiry. The Commonwealth Court
unnecessarily denied itself the opportunity to conduct the fact-finding that the RTKL asks
of it. But because the Commonwealth Court is the ultimate finder of fact under the RTKL,
[J-72-2019] - 27 it would be inappropriate for us to step into its place.23 On remand, the court at a minimum
should compare the 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.
We hereby vacate the order of the Commonwealth Court and remand the case for
further proceedings consistent with this opinion.
Justices Baer, Todd and Donohue join the opinion.
Chief Justice Saylor files a concurring opinion in which Justice Dougherty joins.
Justice Mundy files a dissenting opinion.
23 The Dissent opines that we “impl[y] that . . . the Burig Affidavit[] was not sufficient to satisfy [PSP’s] burden of proof.” Diss. Op. at 1. To the contrary, we hold only that the Commonwealth Court abused its discretion in declining fully to examine OOR’s evidentiary basis for reaching that conclusion. By no means do we intend to foreclose the Commonwealth Court from ruling in PSP’s favor after fully reviewing OOR’s basis for ruling otherwise.
[J-72-2019] - 28