[J-3-2023] [MO: Wecht, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
PENNSYLVANIA STATE POLICE, : No. 44 MAP 2022
:
Appellee : Appeal from the Order of the
: Commonwealth Court at No. 1066
: CD 2017 dated November 17, 2021
v. : Vacating the Determination of the
: Office of Open Records at No. AP
: 2017-0593 dated July 7, 2017 and
AMERICAN CIVIL LIBERTIES UNION OF : Remanding.
PENNSYLVANIA, :
: ARGUED: March 7, 2023
Appellant :
DISSENTING OPINION
JUSTICE MUNDY DECIDED: August 22, 2023
In this case, the Commonwealth Court, acting as the ultimate fact-finder under the
Right-to-Know Law (“RTKL”), 1 was tasked with determining whether the Pennsylvania
State Police (“PSP”) properly denied the American Civil Liberties Union’s (“ACLU”)
request to disclose its AR 6-9 regulation, which sets forth PSP’s policies and procedures
for PSP personnel when using social media monitoring software. Following specific
direction from this Court, the Commonwealth Court remanded this case to the Office of
Open Records (“OOR”) for further development of the record so that the court could fully
and adequately perform that duty. There is no dispute that the Commonwealth Court
possessed the discretionary authority to develop the record – in fact, this Court explicitly
emphasized as much when we first remanded this case. Unlike the majority, I see no
abuse of discretion in the Commonwealth Court’s action and would affirm its decision.
1 Act of Feb. 14, 2008, P.L. 6 No. 3, 65 P.S. §§ 67.101-67.3104.
I begin where this Court last left off, which is critical to the issue before us today.
The Commonwealth Court initially held that PSP satisfied its burden of establishing the
public safety exception to the RTKL 2 through the affidavit of Major Douglas J. Burig, the
Director of PSP’s Bureau of Criminal Investigations. Pa. State Police v. ACLU of Pa.,
1066 C.D. 2017, 2018 WL 2272597 (Pa. Cmwlth. May 18, 2018) (“PSP I”). On appeal,
this Court then vacated the Commonwealth Court’s order because the court did not
conduct in camera review of AR 6-9. ACLU of Pa. v. Pa. State Police, 232 A.3d 654, 670-
71 (Pa. 2020) (“PSP II”). Specifically, this Court held that the Commonwealth Court
abused its discretion for “overturning OOR’s reasoned decision without conducting an
equally careful inquiry[,]” and criticized the Commonwealth Court for “unnecessarily
den[ying] itself the opportunity to conduct the fact-finding that the RTKL asks of it.” Id.
Remanding for further proceedings, this Court provided the following instruction:
But because the Commonwealth Court is the ultimate finder of fact under
the RTKL, it would be inappropriate for us to step into its place. On remand,
the court at a minimum should compare the [Burig] Affidavit to the provisions
of the unredacted Policy that the Affidavit describes. In keeping with its
authority under the RTKL, the court also retains discretion to further
develop the record.
Id. at 671 (emphasis added).
Upon remand, the Commonwealth Court conducted the “equally careful inquiry”
and fact-finding that this Court asked of it – it reviewed the document in camera and
concluded that further development of the record was necessary to determine whether
the document was exempt from disclosure. Pa. State Police v. ACLU of Pa., 1066 C.D.
2017, 2021 WL 5356532 (Pa Cmwlth. Nov. 17, 2021) (“PSP III”). Now, according to the
2 The public safety exception is defined for purposes relevant here as: “A record
maintained by an agency in connection with . . . law enforcement or other public safety
activity that, if disclosed, would be reasonably likely to jeopardize or threaten public safety
or preparedness or public protection activity[.]” 65 P.S. § 67.708(b)(2).
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majority, declining to review the document in camera was insufficient fact-finding and an
abuse of discretion, but seeking a clearer record was too much fact-finding and also an
abuse of discretion. The breadth of a fact-finder’s discretion cannot be so narrow. It is
confounding that the majority deems it an abuse of discretion for the Commonwealth
Court to follow the instructions we provided. Indeed, it was “the duty of [the
Commonwealth Court], on remand, to comply strictly with our mandate[.]”
Commonwealth v Tick, Inc., 246 A.2d 424, 426 (Pa. 1968). The Commonwealth Court
was required to, and did, “proceed in a manner consistent with the views expressed in
our opinion and in accordance with the terms of the statute[.]” Id.
The tension between the Commonwealth Court’s commitment to this Court’s
directives from PSP II and the majority’s decision today is apparent. I cannot see how
the Commonwealth Court abused its discretion by doing exactly what this Court told it to
do – a point that the majority fails to meaningfully address. It is with that backdrop in mind
that I turn to the majority’s analysis. It is well-settled that an abuse of discretion is not
merely an error of judgment. The Commonwealth Court acting as “[t]he first reviewing
court, exercising de novo review with a plenary scope of review, will abuse its discretion
only when it overrides or misapplies the law; exercises manifestly unreasonable
judgment; or manifests partiality, bias, or ill will.” PSP II, 232 A.3d at 665. According to
the majority, such an abuse occurred here “because [the Commonwealth Court’s]
decision had no basis in the text and structure of the RTKL, nor in the record, and because
it exceeded its limited power to act sua sponte.” Maj. Op., at 9. I do not agree.
First, the Commonwealth Court’s decision was squarely based in the text and
structure of the RTKL. In Bowling v. OOR, 75 A.3d 453 (Pa. 2013) (“Bowling II”), 3 this
3 The majority references Bowling v. OOR, 990 A.2d 813 (Pa. Cmwlth. 2010) throughout
its opinion. For simplicity, I will refer to that case as Bowling I and this Court’s decision
on appeal from that case as Bowling II.
[J-3-2023] [MO: Wecht, J.] - 3
Court analyzed the RTKL in order to define the role of Chapter 13 courts and their scope
of review. 4 Most importantly for the present issue, we held that “Chapter 13 courts serve
as fact-finders, [and so] these courts must be able to expand the record – or direct
that it be expanded by the mechanism of remand to the appeals officer – as needed
to fulfill their statutory function.” Id. at 476 (emphasis added). In defining that statutory
function, we noted that, “the duty of an appeals officer or a Chapter 13 court is simply to
determine whether the underlying agency correctly denied a requester access to a
document under one of the statutory exceptions.” Id. at 467; see also, PSP II, 232 A.3d
at 664 (recognizing that Bowling II “identif[ied] the reviewing court as the ultimate finder
of fact and grant[ed] it plenary authority to expand the record beyond that developed
before OOR[.]”). Here, the Commonwealth Court, acting as the ultimate fact-finder,
concluded that further development of the record was necessary in order to determine
whether the PSP correctly denied access to AR 6-9 based upon the public safety
exception. Specifically, the court required a fuller understanding of “the nature and
degree of the risks [PSP] claim[ed were] inherent in the potential disclosure of the
contents of AR 6-9.” PSP III, at *5. The decision to remand and expand the record was
precisely in line with the Commonwealth Court’s role within the RTKL as defined by this
Court in Bowling II.
In fact, the majority concedes that the Commonwealth Court has properly
exercised its authority to remand in a wide variety of circumstances, including “when there
[are] outstanding questions of fact[.]” Maj. Op. at 9-10. However, according to the
4 “Chapter 13 court” is the title given to the courts that review a RTKL decision of an OOR
appeal officer, which are “the Commonwealth Court when the matter arises from a
determination made by a Commonwealth agency, or to the court of common pleas when
the matter arises from a determination made by a local agency.” Bowling II, 75 A.3d at
458. The name is a reference to the chapter of the RTKL in which the courts’ duties are
discussed. 65 P.S. §§ 67.1301-1302. Here, the Commonwealth Court was the Chapter
13 court, as the matter arose from a determination made by a Commonwealth agency.
[J-3-2023] [MO: Wecht, J.] - 4
majority, “the Commonwealth Court in this instance identified no outstanding questions
of law or fact” and “answered the ultimate question on a record that was ‘sufficient for
judicial review[.]’”. Id. at 11-12 (quoting Bowling I, 990 A.2d at 822). This conclusion is
flawed. This Court has held that while the RTKL grants “wide discretion with respect to
procedure, there appears to be little ‘discretion’ concerning whether a document may or
may not be released to a requester[; e]ither the document falls under one of the specific
exemptions, or it is a document that must be released.” Bowling II, 75 A.3d at 467. As
such, “the RTKL contemplates that the foundational question of whether a record or
document is exempt from disclosure is a factual one.” Id. at 476. Contrary to the
majority’s conclusion, the Commonwealth Court here did identify an outstanding question
of fact, i.e. whether there was a connection between the text of the document and risks
articulated in the agency’s affidavit. PSP III, 2021 WL 5356532, at *5 (“the affidavit is
insufficient to connect the text of AR 6-9 with the risks [Burig] articulates;” “because
additional development of the record is necessary, we conclude that PSP should be given
a further opportunity to explain the nature and degree of the risks[.]”). Similarly, the
Commonwealth Court never answered the ultimate question whether the PSP correctly
denied the request based on the public safety exception, but merely concluded that it
needed more information to make that determination. Id. It is clear that, unlike the
Commonwealth Court, the majority deems the record “sufficient for judicial review.” Maj.
Op. at 12 (quoting Bowling I, 990 A.2d at 822). However, a mere disagreement does not
rise to an abuse of discretion. See, Morrison v. Com., Dept. of Public Welfare, 646 A.2d
565, 571 (Pa. 1994) (“an abuse of discretion occurs not merely when the trial court
reaches a decision contrary to the decision that the appellate court would have reached.”).
Further, the majority’s conclusion that the Commonwealth Court’s remand
undercuts the RTKL’s aims is incorrect. See Maj. Op. at 12. I fully recognize that “various
[J-3-2023] [MO: Wecht, J.] - 5
provisions of the RTKL demonstrate an intent for an expedited determination of RTKL
requests.” Id. (quoting Levy v. Senate of Pa., 65 A.3d 361, 381 (Pa. 2013)). However,
focusing exclusively on expediency does not give effect to the statute as a whole, which
is designed to provide expedient transparency of non-exempt records. Allowing the
reviewing court to conduct additional fact finding does not frustrate the goal of the RTKL,
but rather, helps the reviewing court to give effect to the entire statute, including its
exceptions. I emphasize again: “the duty of . . . a Chapter 13 court is simply to determine
whether the underlying agency correctly denied a requester access to a document under
one of the statutory exceptions.” Bowling II, 75 A.3d at 467. I find the majority’s push for
expediency particularly troublesome in a case, as here, where the agency raises a
credible claim under the public safety exception. Where the potential risk is jeopardizing
public safety, I would err on the side of caution and favor careful consideration rather than
expediency. 5
The majority is also incorrect that the Commonwealth Court’s remand was akin to
sua sponte review and somehow relieved the PSP of its burden of proof. I am particularly
troubled by this assertion where the issue of further development of the record was
specifically directed by this court in our remand. See, PSP II, 232 A.3d at 670-71 (“The
Commonwealth Court unnecessarily denied itself the opportunity to conduct the fact-
finding that the RTKL asks of it. . . . In keeping with its authority under the RTKL, the court
also retains the discretion to further develop the record.”). 6 But that aside, the
5 Nevertheless, it is irrelevant that one jurist may favor expediency while another would
favor diligence. At this juncture, the sole question is whether the Commonwealth Court
abused its discretion in weighing of these dynamic goals of the RTKL.
6 I also note that there was no time when the PSP realistically would have seen the need
to request further fact-finding within this case’s unique procedural history. Further, neither
the RTKL nor our precedent suggest that the Commonwealth Court’s ability to expand
the record is dependent upon a request from a party.
[J-3-2023] [MO: Wecht, J.] - 6
Commonwealth Court today did not sua sponte assess a new exception to the RTKL and
remand for fact-finding. Following our directive, the Commonwealth Court properly
assessed the issue before it – whether the document at issue satisfied the public safety
exception – and concluded that further development of the record on that issue was
necessary. Notably, when this Court interpreted the RTKL’s provisions in Bowling II and
concluded that chapter 13 courts are permitted to seek further development of the record,
that ability “to expand the record” was not premised upon the request of a party. Bowling
II, 75 A.3d at 476. In fact, in Bowling, the remand for supplementation of the record was
never at the behest of a party, but an assessment by the Commonwealth Court that such
supplementation was necessary to resolve the questions before it. Bowling I, 990 A.2d
at 825. Along the same lines, the Commonwealth Court in no way relieved the PSP of its
burden to prove that the exception applies. Although PSP has maintained that the
affidavit alone is sufficient to meet its burden, the Commonwealth Court (again, acting as
the ultimate fact-finder) concluded that to make a final determination it needed further
development of one key fact – i.e. the nexus between the risks advised in the affidavit
and the text of the document. On remand, it would remain PSP’s burden to establish by
a preponderance of the evidence that disclosure of the document risks public safety.
In light of the above, I dissent. Unlike the majority, I believe the Commonwealth
Court acted reasonably and well within its discretion in remanding for further development
of the record. Their authority to do so derived from this Court’s bestowal of broad fact-
finding discretion pursuant to the text and structure of the RTKL in Bowling II. I fully
recognize that such discretion is not unfettered, however the Commonwealth Court’s
decision here did not override or misapply the law. Their decision was particularly
reasonable given this Court’s guidance in PSP II. The majority’s decision today cannot
[J-3-2023] [MO: Wecht, J.] - 7
be reconciled with the fact that the Commonwealth Court did exactly what this Court
authorized it to do. As such, I would affirm the Commonwealth Court’s order. 7
Justice Brobson joins this dissenting opinion.
7 As a final note, even accepting the majority’s conclusion, I find it inappropriate for this
Court to order the Commonwealth Court to order disclosure of AR 6-9. The present issue
is not whether the document must be disclosed, but whether the Commonwealth Court
appropriately sought further fact-finding. Assuming arguendo that the Commonwealth
Court erred, the proper course of action would be to remand to the Commonwealth Court
to make a final determination based upon the record as it currently exists. The majority
suggests that there “is no longer an outstanding factual question.” MO at 16 n. 72.
However, as discussed supra, nowhere within the Commonwealth Court’s decision did it
definitively conclude whether this document was exempt from disclosure. PSP III, at *5
(concluding that the record was “insufficient to allow [the court] to determine whether
disclosure of all provisions of AR 6-9 would provide specific tactical information that could
reasonably be expected to aid criminals in evading detection from illegal activities.”). As
this Court previously held, “because the Commonwealth Court is the ultimate finder of
fact under the RTKL, it would be inappropriate for us to step into its place.” PSP II, 232
A.3d at 671.
[J-3-2023] [MO: Wecht, J.] - 8