[J-3-2023]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

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

PENNSYLVANIA STATE POLICE,

Appellee

v.

AMERICAN CIVIL LIBERTIES UNION OF 

PENNSYLVANIA,

Appellant

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No. 44 MAP 2022

Appeal from the Order of the 

Commonwealth Court at No. 1066 

CD 2017 dated November 17, 2021 

Vacating the Determination of the 

Office of Open Records at No. AP 

2017-0593 dated July 7, 2017 and 

Remanding.

ARGUED: March 7, 2023

OPINION

JUSTICE WECHT DECIDED: August 22, 2023

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 

1 Act of Feb. 14, 2008, P.L. 6, No. 3, 65 P.S. §§ 67.101- 67.3104.
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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 

2 65 P.S. §§ 67.305(a), 67.708. 

3 Id. § 67.708(a)(1). 

4 Id. § 67.708(b)(2). 

5 OOR Final Determination, 7/17/2017, at 5-6 (hereinafter, “O.F.D.”).
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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 nondisclosure 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

6 Id. at 9. 

7 Pa. State Police v. ACLU of Pa., 1066 C.D. 2017, 2018 WL 2272597 (Pa. Cmwlth. 

May 18, 2018) (“PSP I”). 

8 See id. at *2 (discussing Carey v. Pa. Dep’t of Corr., 61 A.3d 367, 375 (Pa. Cmwlth. 

2013); Harrisburg Area Cmty. Coll. v. OOR, 2110 C.D. 2009, 2011 WL 10858088 (Pa. 

Cmwlth. May 17, 2011)). 

9 Id. at *6 (emphases added). The court noted that situations in which it had 

reviewed unredacted documents in camera “usually . . . involved exemptions claimed 

under the attorney-client privilege or the predecisional deliberative process.” Id. (citing 

Twp. of Worcester v. OOR, 129 A.3d 44, 60 (Pa. Cmwlth. 2016)). 

10 ACLU of Pa. v. Pa. State Police, 232 A.3d 654, 669 (Pa. 2020) (“PSP II”). 

11 Id. at 670. 
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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

12 Id. 

13 Pa. State Police v. ACLU of Pa., 1066 C.D. 2017, 2021 WL 5356532, at *2 (Pa. 

Cmwlth. Nov. 17, 2021) (“PSP III”). 

14 Id. at *2-*4. 

15 Id. 

16 Id. at *4 (citing Pa. State Police v. Muller, 124 A.3d 761, 766 (Pa. Cmwlth. 2015)). 

17 Id. 
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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 

18 Id. at *5. 

19 Id. 

20 ACLU Br. at 14. 

21 Id. at 15-16 (emphases in original). 
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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 twobites-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 and its failure to address whether 

redactions were appropriate.27 To the extent that Carey stands for the proposition that 

22 Id. at 17 (discussing Bowling v. OOR, 75 A.3d 453, 473 (Pa. 2013) (“Bowling II”)

(noting the General Assembly’s “goal . . . of ensuring swift determinations”)).

23 Id. at 18. 

24 125 A.3d 19, 29 (Pa. 2015)

25 Id.

26 See ACLU Br. at 21-22.

27 61 A.3d at 377. 
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an agency is allowed “to reboot the entire fact-development process with the benefit of 

both perfect hindsight and a judicial explication” of the flaws in its initial attempt to defeat 

disclosure, ACLU claims that it is irreconcilable with the structure and goals of the RTKL 

and should be disapproved.28 Today’s case, ACLU argues, is more akin to McKelvey v. 

Pennsylvania Department of Health, where this Court rejected a request to supplement 

the record because the agency in question had “received numerous opportunities to 

submit evidence and argument before the OOR, and chose not to take advantage of those 

opportunities.”29

Finally, ACLU insists that the decision below constituted an abuse of discretion 

because courts may only adopt the mantle of advocate and sua sponte fashion relief in 

the rarest of circumstances, such as when there is a question of subject matter 

jurisdiction.30 Here, PSP had consistently maintained that the Burig Affidavit by itself was 

sufficient to justify invocation of the public safety exception, and it had resisted the 

consideration of any other facts.31 Because concerns about jurisdiction did not animate 

the Commonwealth Court’s disposition, because PSP never requested a remand, and 

because supplementation was antithetical to the position that PSP maintained throughout 

this litigation, ACLU requests that we deem the Commonwealth Court’s remand to be an 

abuse of discretion. Although it acknowledges this Court’s statement in PSP II that, “[i]n 

keeping with its authority under the RTKL, the [Commonwealth Court] . . . retains 

discretion to further develop the record,” ACLU argues that any such development 

28 See ACLU Br. at 21-22. 

29 255 A.3d 385, 404 (Pa. 2021). 

30 In re Adoption of K.M.G., 219 A.3d 662, 668 (Pa. Super. 2019) (“It is well 

established that an appellate court may not raise an issue sua sponte, except when the 

issue addresses the subject-matter jurisdiction of the court.”). 

31 See ACLU Br. at 22-23 (citing PSP briefs throughout this litigation). 
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nevertheless must be consistent with the structure of the RTKL.32 Here, where the court 

reviewed the unredacted version of AR 6-9 in camera and concluded that PSP’s 

justification was insufficient, the only appropriate action was to order that the record be 

disclosed. 

PSP counters that the Commonwealth Court acted within its discretion as the 

ultimate finder of fact when it remanded the case to OOR to expand the record. Moreover, 

PSP asserts, that action was consistent with this Court’s instruction in PSP II.

33 Contrary 

to ACLU’s assertion, PSP argues that Carey controls and that supplementation of the 

record is appropriate. There, the Commonwealth Court recognized inherent risks 

associated with the disclosure of information in the prison setting,34 and PSP contends 

that the same is true in the context of law enforcement. According to PSP, ACLU’s 

position would represent “an impermissible restriction on the discretion of [fact-finding 

courts] to seek additional evidence when circumstances” require it.

35 PSP asserts that 

such a position would “remov[e] most, if not all, discretion from the court” to balance 

competing interests and would require critical public safety information to be disclosed 

“simply because an affidavit drafter hews slightly away from the needed specificity, 

despite operating in good faith and raising legitimate concerns.”36 PSP dismisses ACLU’s 

concerns about agencies intentionally drafting affidavits that lack detail as “simple 

fearmongering.”37

32 232 A.3d at 671; ACLU Br. at 25.

33 PSP Br. at 11-12. 

34 See Carey, 61 A.3d at 377. 

35 PSP Br. at 15-16. 

36 Id. at 17.

37 Id. 
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Regarding the sua sponte nature of the order, PSP argues that analogous 

restrictions on that power “are of little value in interpreting a law without parallel.”38 

Finally, because it always maintained that the Burig Affidavit is sufficient, PSP contends 

that “only the court . . . was in a position to elicit further development of the record.”39 

Accordingly, PSP argues that it should be allowed the opportunity to further substantiate 

its position on remand. 

In reviewing the Commonwealth Court’s sua sponte remand of this case for further 

factual development, we determine whether that court abused its discretion. Our scope 

of review is plenary.40 We find that the panel below committed an abuse of discretion 

because its 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. 

Initially, we observe the Commonwealth Court’s conclusion in Bowling that, “in the 

absence of a specific restriction, a court deciding a statutory appeal has the inherent 

authority to take reasonable measures to ensure that a record sufficient for judicial review 

exists.”41 In the context of the RTKL, the Commonwealth Court has exercised this 

authority to remand disclosure requests to OOR when there were outstanding questions 

of fact,42 when an identified and relevant party did not have an opportunity to be heard 

38 Id. at 18 (citing PSP II, 232 A.3d at 664 (“[T]he RTKL has no analog in other 

administrative or quasi-judicial frameworks . . . [.]”)). 

39 Id. at 19.

40 Eiseman, 125 A.3d at 29. 

41 Bowling v. OOR, 990 A.2d 813, 822 (Pa. Cmwlth. 2010) (“Bowling I”) (citing Appeal 

of Borough of Churchill, 575 A.2d 550 (Pa. 1990)). 

42 See, e.g., Pysher v. Clinton Twp. Volunteer Fire Co., 209 A.3d 1116, 1125 (Pa. 

Cmwlth. 2019) (remanding to determine whether a fire company qualified as a local 

agency under the RTKL); Dep’t of Labor and Indus. v. Earley, 126 A.3d 355, 358 (Pa. 

Cmwlth. 2015) (remanding to determine whether requested email records, which had 

been deleted, might still exist on a server); McGowan v. Pa. Dep’t of Env. Prot., 103 A.3d 

(...continued)
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below,43 where an agency summarily denied a fee waiver,

44 and where the court identified 

evidence that should have been, but was not, considered.45 In other cases, it has 

remanded to correct a legal error,46 to allow OOR to address a legal question in the first 

374, 388 (Pa. Cmwlth. 2014) (remanding in part because “a genuine dispute exists as to 

whether [the documents in question] . . . contain purely factual material”); Dep’t of Labor 

and Indus. v. Rudberg, 32 A.3d 877, 882 (Pa. Cmwlth. 2011) (remanding to determine 

whether performance review records in the agency’s possession “relate[d] to its own 

employees or employees of other Commonwealth agencies”). 

43 See, e.g., Pa. Turnpike Comm’n v. Elec. Transaction Consultants Corp., 230 A.3d 

548, 563 (Pa. Cmwlth. 2020) (“We remand the matter to the OOR to allow [one of the 

respondents] an opportunity to be meaningfully heard[.]”); Pa. Pub. Util. Comm’n v. 

Sunrise Energy, LLC, 177 A.3d 438, 444-45 (Pa. Cmwlth. 2018) (remanding in part 

because the recipient of agency documents subject to disclosure “did not have the 

opportunity to protect its interests in its own attorney-work-product”); Wishnefsky v. Pa.

Dep’t of Corr., 144 A.3d 290, 295 (Pa. Cmwlth. 2016) (remanding because “Wishnefsky 

was not afforded an opportunity to be heard and to answer the [agency’s] submission to 

OOR”); Pa. Dep’t of Educ. v. Bagwell, 131 A.3d 638, 650 (Pa. Cmwlth. 2015) (remanding 

in light of the fact that “PSU did not have a meaningful opportunity to be heard before the 

initial fact-finder, OOR”).

44 See, e.g., Prison Legal News v. OOR, 992 A.2d 942, 949 (Pa. Cmwlth. 2010) 

(“[T]he matter is remanded to the OOR for further remand to the Department to provide 

explanations for why it denied [the] request for a public interest fee waiver[.]”). 

45 See, e.g., Glunk v. Dep’t of State, 102 A.3d 605, 609 (Pa. Cmwlth. 2014) 

(“Requester contended that the OOR failed to consider [a piece of evidence] . . . [and] 

this [c]ourt remanded to the OOR for consideration of [that evidence]”). 

46 See, e.g., West Chester Univ. of Pa. v. Rodriguez, 216 A.3d 503, 510-11 (Pa. 

Cmwlth. 2019) (remanding where “the OOR applied incorrect standards with respect to 

. . . FERPA’s education records definition” and instructing that “the instant case requires 

a balancing analysis to protect alleged constitutional privacy rights”); State Employees’ 

Ret. Sys. v. Campbell, 155 A.3d 1153, 1156 (Pa. Cmwlth. 2017) (remanding and 

instructing OOR to perform a balancing test as required by Pa. State Educ. Assoc. v. 

OOR, 148 A.3d 142 (Pa. 2016)); Barnett v. Pa. Dep’t of Pub. Welfare, 71 A.3d 399, 405 

(Pa. Cmwlth. 2013) (remanding in light of the conclusion that OOR erred by summarily 

dismissing an appeal where the requester had satisfied the statutory requirements). 
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instance,

47 to allow an agency the opportunity to make limited redactions where it had not 

done so,48 and to instruct OOR to conduct in camera review.

49 PSP argues that the 

remand in this case was consistent with that authority, as well as our statement in PSP II

that the Commonwealth Court would retain its “discretion to further develop the record.”50 

It is not.

In contrast to the foregoing examples, the Commonwealth Court in this instance 

identified no outstanding questions of law or fact, nor any parties that should be granted 

the opportunity to be heard. It discerned no legal error on the part of OOR. The 

proceedings before OOR included in camera review. PSP had already redacted AR 6-9. 

Neither party nor the court pointed to any particular evidence that was necessary to the 

court’s analysis. Here, the Commonwealth Court answered the ultimate question51 on a 

record that was “sufficient for judicial review”52 and—without naming any defect or 

47 See, e.g., UnitedHealthcare of Pa., Inc. v. Baron, 171 A.3d 943, 965 (Pa. Cmwlth. 

2017) (remanding to OOR to address two legal questions); Dep’t of Labor and Indus. v. 

Heltzel, 90 A.3d 823, 834 (Pa. Cmwlth. 2014) (“[W]e remand to allow OOR to evaluate 

the Section 708(b) exceptions in the first instance.”). 

48 See, e.g., Pa. State Police v. Grove, 119 A.3d 1102, 1111 (Pa. Cmwlth. 2015) 

(remanding to “permit PSP . . . to redact from [the] audio component [of the record] 

witness interviews and utterances of private citizens who had no notice of the recording”), 

rev’d on other grounds, 161 A.3d 877 (Pa. 2017); Carey, 61 A.3d at 377 (remanding 

where “DOC did not connect responsive records with a threat to public safety” or address 

whether it “may be able to redact responsive records and thus render them nonthreatening to public safety”). 

49 See, e.g., California Univ. of Pa. v. Schackner, 168 A.3d 413, 423 (Pa. Cmwlth. 

2017) (“[W]e remand this matter to the OOR to conduct in camera review of [the records] 

and to determine whether the records should be exempt from disclosure based on the 

attorney-client privilege.”). 

50 PSP II, 232 A.3d at 671. 

51 PSP III, 2021 WL 5356532, at *5 (finding that the Burig Affidavit is “insufficient to

connect the text of AR 6-9 with the risks he articulates”). 

52 Bowling I, 990 A.2d at 822.
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deficiency—simply gave PSP a fresh opportunity to carry its burden of proving that an 

exception to the disclosure rule applied. In the context of the RTKL, we conclude that the

court abused its discretion.53 

As this Court has recognized, “various provisions of the RTKL demonstrate an 

intent for an expedited determination of RTKL requests,”54 and for disputes to be resolved 

“in an efficient and timely fashion.”55 The law’s predecessors, the Right-to-Know Acts of 

1957 and 2002, set forth no time limit within which an agency was bound to respond to a 

request for disclosure, and appellate review was limited to determining whether an 

agency’s denial was supported by “just and proper cause.”56 Requesters bore the burden 

of demonstrating that a record was a “public record” and that they were entitled to see 

it.57 The General Assembly passed the RTKL in 2008, overhauling that process. 

Agencies now bear the burden of proving an exception to the presumption that all records 

53 The Dissent contends that we "[fail] to address” the fact that “this Court told” the 

Commonwealth Court to do “exactly” what it did. See Dissenting Op. at 3. 

We elucidate this Court’s statement in PSP II—which, importantly, did not 

specifically instruct the Commonwealth Court to order additional fact-finding, but only 

recognized that it retained the discretion to do so—by contrasting the expansive view that 

the Dissent adopts with the way in which this discretion has been wielded in the foregoing 

examples. Cf. PSP II, 232 A.3d at 665 (“[E]ven where broad discretion is granted, it may 

be abused.”). As discussed below, if PSP had requested the opportunity for additional 

fact-finding, our disposition today may have been different. See infra p.14. But PSP did 

not. 

54 Levy v. Senate of Pa., 65 A.3d 361, 381 (Pa. 2013). 

55 Bowling II, 75 A.3d at 474. The Dissent reads Bowling II and Levy to stand for the 

proposition that the RTKL “is designed to provide expedient transparency of non-exempt 

records,” Dissenting Op. at 5 (emphasis in original), but this Court has made no such 

distinction and we decline to make it here. The RTKL provides for the expedient 

determination of all requests, regardless of their outcome. 

56 See id. at 455 (discussing the progression from the RTKA to the RTKL).

57 Id.
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are public records.

58 Read together, various sections of the RTKL provide that parties 

will see their requests “resolved or be before an appellate court within less than four 

months [of] the initial filing of the request” (absent an agreed-upon extension).59 

The Commonwealth Court’s unsubstantiated remand significantly undercuts the 

statute’s aims. First, its approach subjects requesters to the possibility of protracted 

litigation whenever a court expresses pause about the potential effects of fulfilling the 

RTKL’s command. ACLU rightly observes that “months or years of further proceedings” 

may yet be in store before it obtains the record at issue.

60 This would be especially true 

if, even after remand, the Commonwealth Court again finds itself “unable to determine 

from the current record whether disclosure . . . would be reasonably likely to threaten 

public safety or preparedness.”61 Six years already have passed. If and when appellate 

review is allowed to serve as a reset button based upon a court’s ill-defined policy 

concerns, there is no limiting principle, and the judiciary’s claims to neutrality and ordered 

decision-making vanish. The timely and efficient process that the General Assembly 

designed cannot give way to a system in which well-resourced agencies encounter no 

urgency to comply with the RTKL, while requesters deplete their coffers playing Sisyphus. 

Second, the Commonwealth Court’s remand partially relieved PSP of its 

statutorily-imposed burden to prove that an exception to the disclosure rule applies. 

Nothing in the statute contemplates judicial action after it has been determined that an 

agency did not carry its burden. The Commonwealth Court’s reasoning is eerily 

reminiscent of the “just and proper cause” inquiry that the General Assembly discarded

when it enacted the RTKL. An agency’s attempt to prevent disclosure must succeed or 

58 65 P.S. § 67.708(a)(1). 

59 Levy, 65 A.3d at 381. 

60 ACLU Br. at 18. 

61 PSP III, 2021 WL 5356532, at *2-*4. 
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fail on its own merits. If the Commonwealth Court could not “determine from the current 

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

safety or preparedness,”62 that simply means that PSP did not carry its burden. To 

approve of the panel’s intervention into that inquiry would be to give preferential treatment 

to one party over another. This Court cannot countenance such a result. 

Had PSP requested the opportunity to supplement the record, and had the 

Commonwealth Court granted that request, our disposition today might be different. The 

record clearly demonstrates, though, that PSP steadfastly maintained its position that the 

Burig Affidavit alone was sufficient to justify its redactions of AR 6-9.63 Not once did PSP 

seek the opportunity to introduce additional facts, nor did it identify additional facts that 

would, if added to the record, support its decision. 

Furthermore, it is axiomatic that “[s]ua sponte consideration of issues deprives 

counsel of the opportunity to brief and argue the issues and the court of the benefit of 

counsel’s advocacy.”64 In other words, it “disturbs the process of orderly judicial decisionmaking.”65 This Court accordingly tolerates sua sponte action only in a narrow set of 

circumstances,

66 and these are not among them. Our first remand to the Commonwealth 

Court was PSP’s opportunity to supplement the record. PSP did not take that opportunity, 

62 Id. 

63 See supra n.33. 

64 Wiegand v. Wiegand, 337 A.2d 256, 257 (Pa. 1975). 

65 Johnson v. Lansdale Borough, 146 A.3d 696, 709 (Pa. 2016). 

66 See, e.g., Commonwealth v. Batts, 163 A.3d 410, 434 (Pa. 2017) (“A challenge to 

the legality of a particular sentence may be reviewed . . . by an appellate court sua 

sponte.”); Commonwealth v. Edmondson, 718 A.2d 751, 752 n.7 (Pa. 1998) (“[T]his Court 

can raise the issue of waiver sua sponte . . .[.]”); LeFlar v. Gulf Creek Indus. Park No. 2, 

515 A.2d 875, 879 (Pa. 1986) (“The lack of jurisdiction of the subject matter may be raised 

at any time and may be raised by the court sua sponte if necessary.”). 
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and the intermediate panel exceeded its authority in taking up the mantle of advocate and 

doing so on PSP’s behalf. 

Finally, Carey—which is non-binding on this Court in any event—is readily 

distinguishable. There, the Commonwealth Court found that the “circumstances 

present[ed] a uniquely suitable case for supplementation.”67 Evidence submitted by the 

agency in question “did not describe the responsive records or connect the security threat 

to them,” and there was an open question as to whether redaction would serve the 

agency’s interests.68 Here, PSP submitted the Burig Affidavit describing the responsive

records and attempting to connect the alleged security threat to them. AR 6-9 has already 

been redacted. Thus, because Carey offers little guidance with respect to the 

circumstances of this dispute, it need not be “disapproved.”69 Consistent with McKelvey70

and Eiseman,

71 our decision today is grounded in faithful adherence to the structure of 

the RTKL, and in the knowledge that PSP had every opportunity to justify its resistance 

to disclosure. 

The RTKL establishes that agencies bear the burden of proving that an exception 

to the disclosure rule applies. As the Commonwealth Court recognized, PSP has not 

carried that burden.72 Nothing remains, then, but for the panel below to order that PSP 

67 Carey, 61 A.3d at 377. 

68 Id. 

69 ACLU Br. at 21-22. 

70 255 A.3d at 404 (“We note that the Department received numerous opportunities 

to submit evidence and argument before the OOR, and chose not to take advantage of 

those opportunities.”). 

71 125 A.3d at 29 (“[I]t contravenes th[e] salutary purpose [of the RTKL] for [an 

agency] to advance shifting positions in opposing disclosure”). 

72 PSP III at *5 (concluding that the Burig Affidavit is “insufficient to connect the text 

of AR 6-9 with the risks [it] articulates”). The Dissent argues that the Commonwealth 

Court’s authority in this instance “derived from this Court’s bestowal of broad fact-finding 

(...continued)
[J-3-2023] - 16

provide ACLU with an unredacted copy of AR 6-9. We must, and we do, bring this sixyear quest for transparency to an end.

The order of the Commonwealth Court is vacated and the case is remanded for 

proceedings consistent with this Opinion. 

Chief Justice Todd and Justices Donohue and Dougherty join the opinion.

Justice Mundy files a dissenting opinion in which Justice Brobson joins.

discretion pursuant to the text and structure of the RTKL in Bowling II,” and it submits that 

“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.” Dissenting Op. at 7. The 

fact that the Commonwealth Court already has concluded that the Burig Affidavit is 

insufficient to justify PSP’s redactions fatally undermines both points. Whether a record 

is exempt from disclosure is indeed a factual question, see id. at 5 (quoting Bowling II, 75 

A.3d at 476), but in light of the Commonwealth Court’s opinion in PSP III, it is no longer

an outstanding factual question. Furthermore, the Dissent’s proposed course of action is 

perplexing because the Commonwealth Court has already made its determination “based 

upon the record as it currently exists.” Id. at 7 n.7. 

Relatedly, while the remand in Bowling II was not “at the behest of a party,” id., the 

critical distinction remains that no court in that case had explicitly determined that the 

agency’s proffered justification for redaction was insufficient.