The following case synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

Recently, in ACLU of Pennsylvania v. Pennsylvania State Police, No. 66 MAP 2018 (Pa., June 16, 2020), the Pennsylvania Supreme Court clarified the proper scope of appellate review of OOR determinations by holding that Commonwealth Court should have reviewed the OOR’s determination under a broader factual record. The Supreme Court thus vacated Commonwealth Court’s order and required that Court on remand to conduct additional fact-finding to ascertain whether the affidavit submitted by the Pennsylvania State Police (“PSP”) to OOR was sufficient to establish the applicability of RTKL’s “public safety” exclusion to the requested document.

Issue Presented:

Did Commonwealth Court, as the reviewing court on appeal, have discretion to expand upon the record it received in furtherance of its function as the ultimate finder of fact?

The Supreme Court answered this question in the affirmative.

Factual and Procedural Background:

The ACLU of Pennsylvania (“ACLU”) submitted a Right to Know request to the PSP for a complete copy of a PSP regulation that “establishes policies and procedures for PSP personnel when using social media monitoring software.” Slip op. at 2. The PSP produced the nine-page document (“the Policy”) to the requester with redactions that obscured approximately 7 of its 9 pages. The PSP justified the redactions by invoking the RTKL’s public safety exception.

OOR Appeal:

In its appeal to the OOR, ACLU contended that the PSP had not provided a sufficient basis for invoking the public policy exception. PSP responded by submitting an affidavit by Major Douglas J. Burig, the Director of PSP’s Bureau of Criminal Investigation and a 22-year PSP veteran, which averred that disclosure of the Policy “would jeopardize PSP’s ability to conduct criminal investigations and other law enforcement activities it engages in to protect the public.” Slip op. at 5-6. OOR reviewed the unredacted text of the Policy in camera, compared it with the Burig affidavit, and concluded that “[t]he 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.” Slip op. at 7. OOR consequently found that the affidavit did not support application of RTKL’s public safety exception, and ordered the Policy to be produced in full.

Commonwealth Court Appeal:

Commonwealth Court reversed OOR’s determination without reviewing the unredacted text of the Policy. It reasoned that Major Burig’s affidavit was legally sufficient to carry PSP’s burden to establish that disclosure of the full Policy would threaten public safety, based upon the three-part test for such affidavits set forth in Carey v. Pennsylvania Dep’t of Corrs., 61 A. 3d 367 (Pa. Commw. 2013). Such an affidavit is sufficient under Carey if it “(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.” Slip op. at 9. In effect, Commonwealth Court held that where the effect of a disclosure, and not its specific language, is at issue, an agency affidavit is sufficient if it complies facially with Carey and there is no indication of bad faith.

Reasoning of the Supreme Court Majority:

Justice Wecht, writing for the Court majority, began the analysis by observing that in Bowling v. Office of Open Records, 621 Pa. 133, 75 A.3d 453 (Pa. 2013), the Court held that the scope of appellate review of an RTKL determination is defined by what the appellate court is permitted to examine. According to Bowling, the reviewing court is “the ultimate finder of fact” and is not bound to accept OOR’s factual determinations. Slip op. at 12.

The majority held that by accepting Major Burig’s affidavit simply because it “ticks off Carey’s three boxes,” and refusing even to consider the unredacted text of the Policy, Commonwealth Court abused its discretion. Slip op. at 19-20; See also id. at 27. The Court vacated Commonwealth Court’s order and directed them on remand, at a minimum, to review the Burig affidavit in light of the unredacted language of the Policy.

Other Opinions:

In a concurring opinion which Justice Dougherty joined, Chief Justice Saylor joined the majority holdings that Commonwealth Court abused its discretion and failed to conduct a sufficient review of OOR’s determination. He disagreed with the majority’s suggestion that a reviewing court’s failure to consider “any given piece of evidence” considered by OOR is an error of law. Slip op. at 1-2.

Justice Mundy dissented, on the ground that it was clear from the Burig affidavit alone that the public safety exception applied, so there was no justification for “expanding the reviewing court’s scope of review.” Slip op. at 1; see also id. at 6.

Bottom Line:

Commonwealth Court abused its discretion by conducting a limited and unduly deferential factual review of OOR’s determination. The record for Commonwealth Court’s review should not have been limited to the documents specified in the RTKL as the appellate record, but should have permitted true fact finding as to the sufficiency of the agency affidavit proferred to support invocation of RTKL’s public safety exception.