[J-72-2019][M.O. - Wecht, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
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 5/18/18 reversing the order
: of the Office of Open Records at No. AP
v. : 2017-0593 dated 7/7/17
:
:
PENNSYLVANIA STATE POLICE, :
:
Appellee : ARGUED: November 19, 2019
CONCURRING OPINION
CHIEF JUSTICE SAYLOR DECIDED: June 16, 2020
Regarding the majority’s holding that it is appropriate for this Court to apply an
abuse-of-discretion standard in appeals from the Commonwealth Court’s review of
determinations by the Office of Open Records, I join that holding and the supporting
reasoning.
I also join the majority’s holding, as well as its rationale, in the application of that
standard to conclude that the Commonwealth Court failed to conduct a sufficient review
of the Office of Open Records’ determination requiring disclosure of the unredacted
Pennsylvania State Police Policy. See Majority Opinion, slip op. at 27. I respectfully
differ, however, with the majority’s position that, “we need not . . . hold that the
reviewing court commits an error of law simply because it declined to take into account
any given piece of evidence that [the Office of Open Records] sought, admitted, or
considered.” Id. at 16. In my view, this proposition -- as stated -- is in tension with
reviewing courts’ statutory obligation, under the RTKL, to issue its findings of fact and
conclusions of law “based on the evidence as a whole.” 65 P.S. §67.1301(a).
It might perhaps be viewed by some as a semantic issue whether a court that
fairly attributes little or no weight to any given item of evidence has “taken [that item]
into account” in its analysis. Majority Opinion, slip op. at 16. I believe, however, that a
court properly discharges its review function, taking all evidence into account, when it
considers the record in the totality, even though the court may discount the significance
of some discrete evidentiary submissions.
Justice Dougherty joins this concurring opinion.
[J-72-2019][M.O. – Wecht, J.] - 2