IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsylvania State Police, :

Petitioner :

 :

v. :

:

American Civil Liberties :

Union of Pennsylvania, : No. 1066 C.D. 2017

Respondent : Submitted: June 4, 2021

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE FIZZANO CANNON FILED: November 17, 2021

This case is before us on remand from the Pennsylvania Supreme Court, 

which directed that in reviewing the Final Determination of the Office of Open 

Records (OOR), we are to consider the entire record that was before the OOR, 

including conducting an in camera review of an unredacted document sought by 

Respondent, the American Civil Liberties Union of Pennsylvania (Requester) from 

Petitioner, the Pennsylvania State Police (PSP). After an in camera review of the 

document at issue, we vacate the OOR’s Final Determination directing disclosure of 

the unredacted document and remand to the OOR for further proceedings.
2

I. Background

Our detailed statement of facts and legal analysis in this matter are set 

forth in full in our previous opinion. See Pa. State Police v. Am. Civ. Liberties Union 

of Pa. (Pa. Cmwlth., No. 1066 C.D. 2017, filed May 18, 2018), 2018 Pa. Commw. 

Unpub. LEXIS 275 (unreported) (ACLU-I), vacated, 232 A.3d 654 (Pa. 2020) 

(ACLU-II). We repeat here only those portions necessary to our decision on remand.

Requester submitted a record request to PSP pursuant to the Right-toKnow Law (RTKL)1

seeking “a copy, in digital format, of [PSP]’s complete, 

un[]redacted AR 6-9 regulation, which establishes policies and procedures for PSP 

personnel when using social media monitoring software.” Reproduced Record 

(R.R.) at 2a. PSP provided a heavily redacted copy of the requested document, titled 

“Real-Time Open-Source-Based Investigations and Research,” R.R. at 7a-15a,

asserting that the redacted portions were exempt from disclosure under Section 

708(b)(2) of the RTKL, 65 P.S. § 67.708(b)(2), because disclosure of the 

information would be reasonably likely to threaten public safety or preparedness.2 

R.R. at 3a-4a.

Requester filed an appeal with OOR. Before OOR, PSP argued that 

release of the requested information would allow individuals with nefarious motives 

1 Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.

2 Section 708(b)(2) of the RTKL, known as the public safety exemption, protects

[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 or a record that is designated classified by an 

appropriate Federal or State military authority.

65 P.S. § 67.708(b)(2).
3

to more easily conceal their criminal activity and evade police scrutiny. See R.R. at 

29a-30a. PSP submitted an affidavit from its Director of the Bureau of Criminal 

Investigation (BCI), Major Douglas J. Burig. See R.R. at 31a-34a. In his affidavit, 

Major Burig addressed each redacted section of AR 6-9, explaining its nature and 

asserting that disclosure could jeopardize an investigation. See id. 

Requester challenged Major Burig’s affidavit, arguing that it failed to 

link each section’s redactions to reasonable public safety concerns. See R.R. at 36a39a. After reviewing an unredacted copy of AR 6-9 in camera, the OOR Appeals 

Officer found that “the threats outlined in PSP’s affidavit simply do not match the 

text of the policy.” Br. of Pet’r, App. A (Final Determination) at 9. Ultimately, 

therefore, the OOR Appeals Officer concluded that the redacted information was not 

reasonably likely to jeopardize public safety and hence was not exempt from 

disclosure. Final Determination at 10. OOR ordered PSP to provide Requester with 

unredacted copies of all responsive records within 30 days. PSP then petitioned this 

Court for review.

In ACLU-I, this Court reviewed Major Burig’s affidavit, but we did not 

conduct our own in camera review of the unredacted document. Id., slip op. at 7-

13. We concluded that the affidavit was sufficiently detailed to sustain PSP’s burden 

of proof, in that it “(i) described the nature of the records sought; (ii) connected the 

nature of AR 6-9 to the reasonable likelihood that disclosure would threaten public 

safety and impair PSP’s public safety function; and (iii) noted that disclosure would 

allow certain individuals to more easily conceal their criminal activities and evade 

police scrutiny.” ACLU-I, slip op. at 12 (citing Carey v. Pa. Dep’t of Corr., 61 A.3d 

367, 376 (Pa. Cmwlth. 2013)). We concluded that an in camera review was 

“unnecessary given the detailed nature of Major Burig’s [a]ffidavit . . . .” ACLU-I, 
4

slip op. at 13. We also relied on the fact “that Requester conceded at oral argument 

that this Court could decide this matter without conducting an in camera review.” 

Id.; see generally ACLU-II. Further, we reasoned that the situation presented here 

was not analogous to those where courts typically view unredacted documents in 

camera. Id.

After granting allocatur, our Supreme Court vacated our decision in 

ACLU-II and remanded the matter to this Court for further proceedings. The Court 

specifically directed us to conduct an in camera review of the unredacted AR 6-9 on 

remand.

II. Discussion

In his affidavit, Major Burig attested that the regulation at issue 

“concerns investigative and intelligence gathering policies, procedures, and 

methods.” R.R. at 32a. He explained that the redactions were made “because public 

release of these sections would jeopardize PSP’s ability to conduct criminal 

investigations and other law enforcement activities it engages in to protect the 

public.” Id. Major Burig then separately stated PSP’s reason for each redaction.

We review the OOR’s determinations regarding each of Major Burig’s specific 

assertions in light of our in camera review.

PSP redacted the entirety of Section 9.03 of AR 6-9 except for the 

heading, “Utilization of Real-Time Open Sources[3]as an Investigative Tool.” R.R. 

3 Open-source intelligence “is an important tool law enforcement agencies can use to 

guide an investigation. [It] encompasses a wealth of publicly available information, from 

traditional print publications to today’s vast array of digital media outlets.” 

https://www.police1.com/investigations/articles/using-webint-and-osint-to-tackle-extremistgroups-Fvy2So5OzaAoNLTC/#:~:text=OSINT%2C%20or%20opensource%20intelligence%2C%20is%20an%20important%20tool,can%20gather%20a%20multitud

e%20of%20leads%20through%20OSINT (last visited Nov. 16, 2021).
5

at 8a-10a. Major Burig stated that this section describes how investigating PSP 

Troopers are to use open sources during an investigation, when they may and may 

not use open sources, and when they may want to use alternative methods. Id. at 

32a. Major Burig posited that disclosure would allow individuals to undermine 

investigations and would disadvantage PSP because individuals would know when 

PSP can monitor their activities using open sources and could use that information 

to conceal their activities. Id. The OOR Appeals Officer, on the other hand, found 

that “[t]he text of the prohibitions and authorizations within this section [] is broad, 

in contrast with the narrow scope of the prohibitions, and the prohibitions are based 

on known law.” Final Adjudication at 6-7. 

Our review of Section 9.03 reveals that it lists the categories of valid 

law enforcement purposes for which monitoring may be employed and includes

limitations to assure compliance with statutory and constitutional requirements. 

However, the text of Section 9.03 and the description and statements in the affidavit 

concerning the risks arising from disclosure are insufficient to allow us to determine 

whether disclosure of the text of Section 9.03 could reasonably be expected to aid

criminals in evading detection of illegal activities. Accordingly, we cannot 

determine from the current record whether disclosure of this section would be 

reasonably likely to threaten public safety or preparedness.

PSP redacted the entirety of Section 9.04 of AR 6-9 except for the 

heading, “Authorization to Access Real-Time Open Sources and/or Real-Time Open 

Source Networks.” R.R. at 10a-11a. Major Burig stated that this section describes 

when a Trooper must obtain a supervisor’s approval in an investigation and what 

steps may be taken to further that investigation, including the approval process to 

establish a specific investigative method. Id. at 32a. Major Burig posited that 
6

disclosure would expose the specific investigative method and allow those involved 

in criminal activity to impede investigations. Id. 

Our review indicates that this section states when a supervisor’s 

authorization is needed for on-line investigations and the purposes for which an 

investigator may use an on-line alias. Like Section 9.03, however, the text of Section 

9.04 and the description and statements in the affidavit concerning the risks arising 

from disclosure are insufficient to allow us to determine whether disclosure of the 

text of Section 9.04 could reasonably be expected to aid criminals in evading 

detection of illegal activities. Accordingly, we cannot determine from the current 

record whether disclosure of this section would be reasonably likely to threaten 

public safety or preparedness.

PSP redacted the entirety of Section 9.05 of AR 6-9, except for the 

heading, “Authorization Procedures for the Use of Online Aliases and Online 

Undercover Activity.” R.R. at 11a-13a. Major Burig explained this section concerns 

PSP’s ability to use open sources in an undercover capacity and provides policies, 

procedures, and operational details regarding undercover activity. Id. at 33a. He 

stated that this information would provide criminals with tactics PSP uses when 

conducting undercover investigations, thereby jeopardizing PSP’s investigations 

and ability to catch individuals. Id. 

Our review of Section 9.05 reveals that it states the forms required and 

the procedures to be followed in documenting approval for using and altering aliases

and conducting on-line investigations. Like Section 9.03, Section 9.05 includes 

some limitations to assure compliance with statutory and constitutional 

requirements. However, the text of Section 9.05 and the description and statements 

in the affidavit concerning the risks arising from disclosure are insufficient to allow 
7

us to determine whether disclosure of the text of Section 9.05 could reasonably be 

expected to aid criminals in evading detection of illegal activities. Accordingly, we 

cannot determine from the current record whether disclosure of this section would 

be reasonably likely to threaten public safety or preparedness.

PSP redacted the entirety of Sections 9.06, 9.07 and 9.08, except for the 

headings “Deconfliction,” “Utilizing Real-Time Open Source Monitoring Tools,” 

and “Source Reliability and Content,” respectively, as well as Subsection C of 

Section 9.09, which appears under the heading “Documentation and Retention.” 

R.R. at 14a-15a. Major Burig explained that these sections contain information 

regarding when an investigation may be terminated, situations in which to use open 

source methods, and procedures used to verify the information obtained. Id. at 33a. 

He stated that disclosure of this information would reveal how PSP conducts its 

investigations using open sources, thereby jeopardizing PSP’s ability to conduct 

such investigations in the future. Id. 

Our review reveals that Section 9.06 provides for avoiding duplication in 

the use of aliases. Section 9.07 authorizes use of real-time open source monitoring 

when appropriate. Section 9.08 requires corroboration of information obtained by the 

use of such monitoring. Section 9.09, including Subsection 9.09C, governs retention 

of information obtained from such monitoring and is general in nature. However, 

the text of these sections and the descriptions and statements in the affidavit 

concerning the risks arising from their disclosure are insufficient to allow us to 

determine whether disclosure of the text of these sections could reasonably be expected 

to aid criminals in evading detection of illegal activities or to aid unacceptable 

candidates in hiding unfavorable background information. Accordingly, we cannot 
8

determine from the current record whether disclosure of these sections would be 

reasonably likely to threaten public safety or preparedness.

PSP redacted the entirety of Section 9.10 of AR 6-9, except for the 

heading, “Utilization of Real-Time Open Sources for Employment Background 

Investigations.” R.R. at 15a. Major Burig explained that PSP conducts background 

investigations on employees and may use open sources to determine whether a 

candidate for Trooper is suitable for employment. Id. at 33a. He stated that the 

information was redacted because it would jeopardize PSP’s ability to hire qualified 

individuals and that disclosure would reveal the specific information that may be 

reviewed to determine whether a candidate is suitable for employment. Id. He 

further explained that PSP takes steps to ensure candidates are suitable for 

employment in order to protect the public and the “Department.” Id. 

Like most of the other sections of AR 6-9, Section 9.10 contains 

provisions allowing background investigations of candidates for employment and 

includes limitations to assure compliance with statutory and constitutional 

requirements. However, the text of Section 9.10 and the description and statements 

in the affidavit concerning the risks arising from disclosure are insufficient to allow 

us to determine whether disclosure of the text of Section 9.10 could reasonably be 

expected to aid criminals in evading detection of illegal activities or to aid 

unacceptable candidates in hiding unfavorable background information. 

Accordingly, we cannot determine from the current record whether disclosure of this 

section would be reasonably likely to threaten public safety or preparedness.

Major Burig also addressed Section 9.02 of AR 6-9, entitled 

“Definitions,” under which some of the terms and their definitions were redacted. 

R.R. at 7a. Major Burig stated that disclosure of the redacted language would 
9

provide insight into how PSP conducts an investigation and what sources and 

methods it would use. Id. at 33a. 

However, our review of the text of Section 9.02 and the description and 

statements in the affidavit concerning the risks arising from disclosure are 

insufficient to allow us to determine whether disclosure of the redacted language in 

this section would be reasonably likely to threaten public safety or preparedness.

In general, is it the burden of the party resisting disclosure to establish 

that an exemption from the RTKL applies. See Pa. State Police v. Muller, 124 A.3d 

761, 766 (Pa. Cmwlth. 2015). However, 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. For example, in Carey, the requester sought information 

concerning inmate transfers. 61 A.3d at 370. The OOR denied the request pursuant 

to the public safety exception:

As to whether the disclosure would threaten public safety, 

the OOR considered the affidavit submitted by [the 

Department of Corrections (DOC)]. That affidavit 

attested that the responsive records would reveal the 

names of DOC officials responsible for transfers, and 

reveal security and logistical procedures to transfer 

custody of inmates. These revelations would allow 

interference with DOC security measures and thus 

threaten DOC, inmate and general public safety. 

Id. at 371. DOC presented an affidavit from its Director of the Office of Population 

Management, who opined, inter alia, that “disclosing responsive records would 

foster retaliation against DOC and jeopardize the security of future transfers, and 

allow inmates to manipulate the eligibility assessment for transfer.” Id. at 375. On 

review, this Court concluded DOC’s affidavit failed to explain which requested 
10

records were protected from disclosure, failed to connect the responsive records with 

a threat to public safety, and failed to explain how disclosure of the requested 

information would be likely to impair transfers. Id. at 377. Notwithstanding DOC’s 

failure to sustain its burden of proof, however, we declined to decide the case on that 

basis, determining that “the records relate to prison operations, heightening the risk 

associated with disclosure. Without more information, we would be remiss in 

deciding this case on the current record.” Id. We observed that “[w]hen securityrelated exemptions are asserted in the police or prison context, and responsive 

records implicate valid security concerns, and an agency’s proof is insufficient to 

discern the contents of responsive records, seeking additional evidence may be 

appropriate.” Id.; see also Delaware Cnty. v. Schaefer, 45 A.3d 1149, 1158-59 (Pa. 

Cmwlth. 2012) (remanding for additional evidence where existing record did not 

permit determination of whether disclosure of requested information would pose risk 

to personal security); Commonwealth v. Rudberg, 32 A.3d 877, 882 (Pa. Cmwlth. 

2011) (court’s broad scope of review authorizes remand to OOR where necessary to 

supplement the record); Allegheny Cnty. Dep’t of Admin. Servs. v. A Second Chance, 

Inc., 13 A.3d 1025, 1040 (Pa. Cmwlth. 2011) (remanding for additional evidence

where, although parties were not prevented from presenting evidence initially, 

information request implicating physical safety and personal security issues was “a 

serious matter that deserve[d] thoughtful consideration on a complete record”); cf. 

Muller, 124 A.3d at 766 (declining to allow supplementation of record where PSP 

had not “articulated any security related, public safety, or like considerations that 

favor supplementation”).

Here, although PSP was afforded an opportunity to present an affidavit 

in support of nondisclosure, and despite Major Burig’s effort to be as explicit as 
11

possible in explaining the risks of disclosing the full text of AR 6-9, the affidavit is 

insufficient to connect the text of AR 6-9 with the risks he articulates. However, we 

recognize that an affiant may walk a fine line in attempting to offer sufficient 

specificity to describe such risks without effectively divulging the contents of the 

documents at issue. Moreover, as in Carey, “[w]hen security-related [exemptions]

are asserted in the police or prison context, and responsive records implicate valid 

security concerns, and an agency’s proof is insufficient to discern the contents of 

responsive records, seeking additional evidence may be appropriate.” 61 A.3d at 

377. Accordingly, in this instance, 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 it claims are inherent in potential disclosure of the 

contents of AR 6-9. See id.; Schaefer, 45 A.3d at 1158-59; Rudberg, 32 A.3d at 882; 

A Second Chance, 13 A.3d at 1040.

III. Conclusion

Our in camera review of AR 6-9 and Major Burig’s attestation were 

insufficient to allow us 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 of illegal activities. Accordingly, we conclude that 

further development of the record is required. Therefore, we vacate the OOR’s Final 

Determination and remand this matter to the OOR for further supplementation of the 

record, including an evidentiary hearing, and issuance of a new determination.

__________________________________

CHRISTINE FIZZANO CANNON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsylvania State Police, :

Petitioner :

 :

v. :

:

American Civil Liberties :

Union of Pennsylvania, : No. 1066 C.D. 2017

Respondent :

O R D E R

AND NOW, this 17th day of November, 2021 the Final Determination 

of the Office of Open Records (OOR) is VACATED, and this matter is 

REMANDED to the OOR for further supplementation of the record, including an 

evidentiary hearing, and a new determination.

Jurisdiction is relinquished.

__________________________________

CHRISTINE FIZZANO CANNON, Judge