Pa. State Police v. Am. Civil Liberties Union of Pa.

300 A.3d 386

PENNSYLVANIA STATE POLICE, Appellee v. AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA, Appellant

No. 44 MAP 2022

Supreme Court of Pennsylvania.

Argued: March 7, 2023

Decided: August 22, 2023

Elizabeth Mary Casey, Esq., Dorothy Alicia Hickok, Esq., Mark David Taticchi, Esq., Faegre Drinker Biddle & Reath LLP, Andrew Chapman Christy, Esq., ACLU, for Appellant.

John Joseph Herman, Esq., Brendan Joseph O'Malley, Esq., Pennsylvania State Police, for Appellee.

Jonathan Howard Feinberg, Esq., Kairys, Rudovsky, Messing, Feinberg & Lin, LLP, for Amici Curiae Alliance for Police Accountability, The National Police Accountability Project, Thomas Merton Center.

Paula Knudsen Burke, Esq., Reporters Committee for Freedom of the Press, for Amici Curiae Pennsylvania NewsMedia Association, Reporters Committee for Freedom of the Press.

Melissa Bevan Melewsky, Esq., Pennsylvania NewsMedia Association, for Amicus Curiae Pennsylvania NewsMedia Association.

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.

OPINION

JUSTICE WECHT

This appeal arises under the Right-to-Know Law ("RTKL"). ¹ We consider whether the Commonwealth Court abused its discretion when— sua sponte— it issued a remand to the Office of Open Records ("OOR") for additional fact-finding after that court already had determined that the agency subject to the record request failed to meet its burden of proving that an exception to disclosure requirements applied. We conclude that such an abuse of discretion occurred, and we accordingly reverse. We remand this matter to the Commonwealth Court for disposition consistent with this Opinion.

The General Assembly enacted the RTKL in 2008 in an effort to promote transparency. The RTKL provides that any "record in the possession of a Commonwealth agency or local agency shall be presumed to be a public record" unless it is protected by a privilege, exempt from disclosure under "any other Federal or State law or regulation or judicial order or decree," or exempt under Section 708 of the RTKL. ² The burden of proving that one of the Section 708 exceptions applies belongs to the Commonwealth agency that is resisting disclosure. ³

In March 2017, the American Civil Liberties Union of Pennsylvania ("ACLU") submitted a RTKL request to the Pennsylvania State Police ("PSP") seeking a copy of AR 6-9, a nine-page regulation that explains how that agency monitors social media. PSP produced the policy, but heavily or completely redacted every page. PSP asserted that these redactions were appropriate pursuant to the public safety exception of Section 708, which exempts from disclosure records:

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 or a record that is designated classified by an appropriate Federal or State military authority. ⁴

PSP submitted the affidavit of Major Douglas J. Burig, the Director of PSP's Bureau of Criminal Investigations, in support of its position. Major Burig attested that disclosing AR 6-9 would jeopardize the effectiveness of PSP investigations.

ACLU filed an administrative appeal with OOR, requesting an in camera review of the unredacted policy so that OOR could determine whether the public safety exception applied. OOR examined AR 6-9 section by section and explained why, as to each, the Burig Affidavit's claims about the likely effects of disclosure were not supported by the substance of the unredacted text. OOR determined that "[t]he processes described ... 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." ⁵ In short, "the threats outlined in [the Burig Affidavit] simply do not match the text of the policy." ⁶ Accordingly, OOR directed PSP to furnish ACLU an unredacted copy.

PSP appealed, and a three-judge panel of the Commonwealth Court reversed. ⁷ The court opined that, while establishing the likelihood of a threat required more than speculation, the agency was not required to establish a definite threat. ⁸ Contrary to OOR's conclusion, the panel determined, the Burig Affidavit was sufficient to sustain PSP's burden because Major Burig's conclusions were grounded in his extensive experience. In camera review was not necessary, the court explained, where " the effect of the disclosure " was at issue, as opposed to "the actual words on the page ." ⁹

We granted ACLU's petition for allocatur , and we vacated the Commonwealth Court's order. We held that the ruling below "eliminate[d] one of the key structural features of the current RTKL process and create[d] a de facto presumption of non-disclosure in virtually all cases" where the effect of disclosure is at issue. ¹⁰ The Commonwealth Court had "accepted the contents of a wholly untested affidavit," which was "necessarily vague," and did not "[avail] itself of the readily available opportunity to measure the [Burig Affidavit] against [AR 6-9]." ¹¹ In granting PSP undue and sweeping deference, we concluded, the Commonwealth Court had erected a barrier to disclosure that was "irreconcilable with the RTKL." We held that the court had abused its discretion by declining to conduct in camera review "simply because there [was] no facial evidence of bad faith." ¹² This Court vacated the Commonwealth Court's order and remanded the case for further proceedings.

Following remand, the Commonwealth Court proceeded to conduct an in camera review of the unredacted version of AR 6-9. ¹³ The court determined that the text of each section

and the description and statements in the affidavit concerning the risks arising from disclosure [were] insufficient to allow [it] to determine whether disclosure ... could reasonably be expected to aid criminals in evading detection of illegal activities or [with respect to some sections,] to aid unacceptable candidates in hiding unfavorable background information. ¹⁴

The Commonwealth Court repeatedly found that it could not "determine from the current record whether disclosure of this section would be reasonably likely to threaten public safety or preparedness." ¹⁵ The court recognized that, in general, "it is the burden of the party resisting disclosure to establish that an exemption from the RTKL applies." ¹⁶ It opined, however, that, "where the subject matter of a request involves public safety or security, such as in police matters, careful consideration of a complete record is especially important, and supplementation of the record, if necessary, is appropriate." ¹⁷

In spite of its finding that Major Burig's Affidavit was "insufficient to connect the text of AR 6-9 with the risks he articulates," the court concluded nonetheless that "PSP should be given a further opportunity to explain the nature and degree of the risks it claims are inherent in potential disclosure of the contents of AR 6-9." ¹⁸ It then vacated OOR's Final Determination and remanded the matter to OOR for "further supplementation of the record, including an evidentiary hearing, and issuance of a new determination." ¹⁹ ACLU again petitioned this Court for allocatur , which we granted.

ACLU first argues that the Commonwealth Court abused its discretion in refusing to order the release of AR 6-9, given that court's conclusion that the Burig Affidavit did not support PSP's heavy redactions. A "straightforward reading of the text of the RTKL and a dispassionate application of this Court's precedents," ACLU asserts, leaves "nothing left for the Commonwealth Court to do except affirm the OOR's order." ²⁰ According to ACLU, the intermediate panel's decision to remand lacked a basis in the text of the RTKL or any justification on the record, and also conflicted with the statute's core purposes.

ACLU stresses that the General Assembly intended to require proof of "a probable threat to public safety, not a possible or colorable one," and ACLU maintains that the Commonwealth Court undermined that requirement by exempting PSP from the applicable burden of proof in light of its security concerns. ²¹ ACLU argues that, while the General Assembly could have carved out a special status for law enforcement agencies, it did not. As a result of "permitting [PSP] to obtain a do-over of its effort[s] to carry its burden of proof," ACLU contends, the decision below "undercuts expediency by dramatically enlarging the time (and cost) required to secure a record's release in public safety cases." ²² ACLU reminds this Court that this appeal began over six years ago, and ACLU objects to the prospect that, in returning to OOR for further fact-finding, it would be sent back all the way to "Square One." ²³ ACLU further cautions that affording PSP a two-bites-at-the-apple rule would encourage agencies like PSP to rely upon affidavits that are as vague as possible—knowing that they would get another opportunity to buttress their arguments—and to intentionally protract litigation so that requesters are forced to abandon their pursuits.

ACLU relies upon Department of Public Welfare v. Eiseman , in which this Court refused to allow a Commonwealth agency—which had agreed that the only remaining question was whether an exception applied—to introduce new evidence in support of a new defense to disclosure. ²⁴ We held that allowing the Department of Public Welfare to "advance shifting positions" would frustrate the RTKL's goals of timely disclosure. ²⁵ ACLU argues that the same is true here. Moreover, ACLU contends that Carey v. Pennsylvania Department of Corrections —a case upon which PSP relies—does not compel a different conclusion. ²⁶ There, the Commonwealth Court permitted supplementation of the record based upon the Department of Corrections’ failure to identify which records were responsive to the request...