ACLU of PA, Aplt. v. PA State Police

[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).

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 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