Global Freedom of Expression

Pennsylvania State Police v. American Civil Liberties Union of Pennsylvania

Expands Expression

Key Details

  • Mode of Expression
    Public Documents
  • Date of Decision
    August 22, 2023
  • Outcome
    Decision - Procedural Outcome, Reversed and Remanded, Decision Outcome (Disposition/Ruling)
  • Case Number
    44 MAP 2022
  • Region & Country
    United States, North America
  • Judicial Body
    Appellate Court
  • Type of Law
    Administrative Law
  • Themes
    Access to Public Information, Digital Rights
  • Tags
    Right to Know

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Case Analysis

Case Summary and Outcome

The Supreme Court of Pennsylvania has ruled that the Commonwealth Court committed an abuse of discretion when it ordered a remand to the Office of Open Records. In the case, the American Civil Liberties Union of Pennsylvania via the Right to Know Law  (RTKL) sought an unredacted copy of a Social Media Monitoring Policy (AR 6-9) from the Pennsylvania State Police. Pennsylvania State Police heavily redacted the policy, citing public safety concerns. The Office of Open Records ordered the release of an unredacted copy, but the Commonwealth Court reversed this decision, emphasizing that the agency’s redactions were justified based on the affidavit alone. The Supreme Court held that the Commonwealth Court’s remand was an abuse of discretion, as it had no basis in the RTKL or the record, and it risked undermining the law’s objective of expeditious determination of requests. The Court criticized the shift in the burden of proof and sua sponte intervention by the Commonwealth Court and emphasized the importance of adherence to the RTKL’s principles. Consequently, the Court vacated the Commonwealth Court’s order, directing the Pennsylvania State Police to provide the ACLU with an unredacted copy of AR 6-9, concluding a protracted legal battle for transparency and adherence to the RTKL.


In March 2017, the American Civil Liberties Union of Pennsylvania (ACLU) submitted a Right to Know Law request to the Pennsylvania State Police wherein it sought a copy of AR 6-9, a nine-page regulation that explains how that agency monitors social media. Pennsylvania State Police produced the policy but heavily redacted every page on the assertion that these redactions were appropriate pursuant to the public safety exception of Section 708, which exempts from disclosure records. Pennsylvania State Police also enclosed the affidavit of Major Douglas J. Burig, the Director of PSP’s Bureau of Criminal Investigations, in support of its position, wherein Major Burig attested that disclosing AR 6-9 would jeopardize the effectiveness of PSP investigations. [p. 2]

ACLU filed an Administrative Appeal before the Office of Open Records seeking an in-camera review of the said Policy. The Office of Open Records examined every provision of the Policy and disregarded Major Douglas’s Affidavit that it would be a threat to provide the Policy. The Office of Open Records directed the Pennsylvania State Police to furnish the ACLU with an unredacted copy. [p. 2]

Pennsylvania State Police filed an Appeal before the Commonwealth Court. A three-judge panel heard the appeal and reversed the Office of Open Records’ order. The Commonwealth Court held that the agency (Pennsylvania State Police) while establishing the likelihood of a threat required more than speculation, and didn’t have to establish a definite threat. The Commonwealth Court held that Major Douglas’s Affidavit was sufficient for the Pennsylvania State Police’s decision considering that Major Douglas’s conclusion would have arrived from his extensive experience. The Commonwealth Court concluded that in-camera review was not necessary, because the issue is with respect to “the effect of the disclosure,” as opposed to “the actual words on the page.” 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 pre-decisional deliberative process.” [p. 3]

The ACLU filed an appeal (petition for allocatur) before the Supreme Court of Pennsylvania State Police. [p. 3]

Decision Overview

Justice Wecht authored the majority opinion, joined by the Chief Justice Todd, Justice Donohue, and Justice Dougherty. Justice Mundy wrote a dissenting opinion joined by Justice Brobson. The primary issues before the Court were, whether the Commonwealth Court abused its discretionary powers in remanding again for further supplementation; whether such a sua sponte (on its own motion) remand was within the scope of powers granted to the Commonwealth Court, and lastly whether the remand was inconsistent with the essence and intention of Right to Know Law.

ACLU contended that the Commonwealth Court erred by refusing to order the release of document AR 6-9, as it believes the court’s conclusion that the Burig Affidavit did not support the Pennsylvania State Police’s heavy redactions was unfounded. The ACLU contended that a straightforward interpretation of the Right-to-Know Law and existing legal precedents should have led to the affirmation of the Office of Open Records’ order for disclosure. It further contended that the General Assembly intended the Right-to-Know Law to require proof of a probable threat to public safety, not just a possible or colorable one, and the Court’s exemption of PSP from this burden of proof undermined that requirement. The ACLU further criticized the decision for potentially protracting litigation and discouraging transparency by allowing agencies like the Pennsylvania State Police to rely on vague affidavits and receive multiple opportunities to strengthen their arguments.

Moreover, the ACLU referred to the Department of Public Welfare v. Eiseman, where a Commonwealth agency was not allowed to introduce new evidence to support a new defense to disclosure, as such actions would frustrate the Right-to-Know Law’s goal of timely disclosure. ACLU contended that this case is similar, and it should not allow Pennsylvania State Police to “reboot the entire fact-development process” with perfect hindsight. In conclusion, the ACLU emphasized that the Commonwealth Court’s decision was an abuse of discretion, as courts should only intervene in rare circumstances. Since Pennsylvania State Police consistently maintained that the Burig Affidavit alone justified the public safety exception, and it never requested a remand or supplementary information, the ACLU contended that the Court’s remand was unjustified. 

On the contrary, the Pennsylvania State Police contended that the Commonwealth Court acted within its discretion when it remanded the case to the Office of Open Records for additional fact-finding. Pennsylvania State Police contended that the precedent set by Carey v. Pennsylvania Department of Corrections, (2013) is applicable, suggesting that supplementation of the record is justified in cases involving concerns about public safety. Furthermore, Pennsylvania State Police contended that the ACLU’s position would excessively restrict the court’s discretion to seek additional evidence when necessary and create an unnecessary burden on law enforcement agencies by forcing them to disclose critical public safety information due to minor shortcomings in affidavit specificity. Pennsylvania State Police dismissed ACLU’s concerns about agencies intentionally drafting vague affidavits as unwarranted fearmongering and maintained that they should have the opportunity to further support their position on remand because they consistently argued that the Major Douglas’s Affidavit alone justified the redactions.

On the issue of the Commonwealth Court abusing its discretionary powers, the Supreme Court held that the Commonwealth Court’s decision to remand was an abuse of discretion. The Court observed that the Commonwealth Court had the authority to remand cases when there were outstanding questions of fact, legal errors, or when parties needed an opportunity to be heard. [Pysher v. Clinton Twp. Volunteer Fire C, (2019); Pa. Turnpike Comm’n v. Elec. Transaction Consultants Corp, (2020); Prison Legal News v. OOR, (2010) and Glunk v. Dep’t of State, (2014)] However, in this instance, the Commonwealth Court identified no such issues. They neither pointed out any defect in the record nor identified any questions of law or fact that warranted further review. The Supreme Court found that the remand had no basis in the text and structure of the Right-to-Know Law and exceeded the Court’s limited power to act on its own motion. [p. 9-10]

The Supreme Court emphasized that the Right-to-Know Law aims for an expedited determination of requests and disputes to be resolved efficiently and in a timely fashion. The RTKL, enacted in 2008, shifted the burden of proving exceptions to the presumption that all records are public from requesters to agencies. It aimed to ensure that requests are resolved or brought before an appellate court within a short timeframe, typically less than four months from the initial filing unless parties agree to extensions. The Supreme Court criticized the Commonwealth Court’s remand in the specific case under consideration, noting that it endangered the RTKL’s objectives. It expressed concern that such remands could lead to protracted litigation, potentially lasting for months or years, and risked eroding the RTKL’s efficiency. [p. 13]

The Supreme Court noted that the Commonwealth Court’s order partially relieved PSP of its statutorily imposed burden to prove that an exception to the disclosure rule applies. The Supreme Court criticized this change of burden to prove and observed that it relieved the Pennsylvania State Police of its obligation to prove the necessity of withholding certain information under the Right to Know Law. The Court contended that once it had been established that the Pennsylvania State Police did not meet its burden of proof, no further judicial action was warranted. The Court likened the Commonwealth Court’s reasoning to the outdated “just and proper cause” inquiry, which the Right to Know Law had abandoned. The Court emphasized that an agency’s attempt to withhold information should stand or fall on its own merits, without judicial interference. Furthermore, the Court noted that the Commonwealth Court’s decision to remand without valid reasons could lead to unequal treatment between parties involved in Right to Know Law cases. Despite PSP’s failure to introduce additional evidence, the Commonwealth Court gave PSP an opportunity to reargue its case without proper justification, which the Court deemed unfair. 

Furthermore, the Supreme Court criticized the Commonwealth Court for its sua sponte intervention, highlighting that such actions disrupt the standard judicial process. The Court distinguished the Carey v. Pennsylvania Department of Corrections, (2013) on the account that it is not binding in any event. The Court noted that in Carey, the agency failed to adequately describe the records or connect the alleged security threat to them, raising questions about the need for redaction. However, in the present case, the Supreme Court noted that the Pennsylvania State Police had submitted Major Douglas’s Affidavit, describing the responsive records and attempting to link the security threat to them. The Court asserted that Carey didn’t provide relevant guidance to the current dispute due to these differences, so it didn’t need to be challenged.

In conclusion, the Court vacated the Commonwealth Court’s order and directed PSP to provide the American Civil Liberties Union (ACLU) with an unredacted copy of the requested records, bringing an end to a lengthy legal battle over the right to access information under the RTKL. 

Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

The ruling expands expression as it rules in favor of transparency and accountability, and further explicitly elaborates on the objectives of the Right-to-Know Law. In line with the intentions of the concerned law, and this ruling, it is made clear that measures resulting in unnecessary and avoidable protracted litigation are inconsistent with the law. The ruling is also important as it essentially ruled against supporting records by law enforcement agencies that are vague in nature and fail to satisfy the legal requirements, supporting the citizen’s right to know about the impugned social media policy that the law enforcement agency followed.


Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

Case Significance

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Case significance refers to how influential the case is and how its significance changes over time.

This case did not set a binding or persuasive precedent either within or outside its jurisdiction. The significance of this case is undetermined at this point in time.

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