ACLU of PA, Aplt. v. PA State Police, 232 A.3d 654

Background

ACLU requested the unredacted Pennsylvania State Police (PSP) AR 6-9 policy on real-time open-source/social-media monitoring; PSP produced a heavily redacted 9‑page policy citing the RTKL public-safety exemption.
PSP submitted a sworn affidavit by Major Douglas Burig asserting that disclosure would jeopardize investigations and public safety; OOR reviewed the unredacted policy in camera.
OOR concluded Burig’s affidavit did not establish the required nexus between disclosure and threatened public safety and ordered disclosure of the unredacted policy.
PSP appealed to the Commonwealth Court, which sua sponte obtained the unredacted policy but reversed OOR without comparing the affidavit to the policy, accepting the affidavit as facially sufficient under Carey.
The Supreme Court of Pennsylvania held the Commonwealth Court abused its discretion by reversing OOR without conducting an equally careful inquiry (at minimum comparing the affidavit to the unredacted policy) and remanded the case.

Issues

Issue	Plaintiff's Argument (ACLU)	Defendant's Argument (PSP)	Held
1) Is in camera review appropriate when the public-safety exemption is claimed?	In camera review is an essential check when the requester cannot meaningfully rebut an agency affidavit; reviewing court should compare affidavit to the record.	Agency testimony about effects is dispositive if affidavit satisfies Carey; in camera review unnecessary where affidavit facially complies.	SCOTPA: In camera review is an appropriate tool; reviewing courts should compare affidavit to the record when needed.
2) May the reviewing court reverse OOR without considering all evidence OOR relied on (including documents reviewed in camera)?	No — Bowling and RTKL require the reviewing court to consider the evidence OOR considered; declining to do so can abuse discretion.	The facial sufficiency of the affidavit controls; the court need not review the underlying document if affidavit is adequate.	SCOTPA: Commonwealth Court abused its discretion by reversing OOR without at minimum comparing the affidavit to the unredacted policy; vacate and remand.
3) Was the Burig affidavit, on its face, sufficient to justify all redactions?	The affidavit was too generalized; OOR properly found it insufficient and tested it against the unredacted policy.	The affidavit met Carey’s three-part test and should be accepted absent bad faith.	SCOTPA: Declined to decide the ultimate sufficiency on the merits; remanded for the Commonwealth Court to compare affidavit and policy and further develop the record as warranted.

Key Cases Cited

Bowling v. Office of Open Records, 75 A.3d 453 (Pa. 2013) (scope of review; reviewing court is ultimate finder of fact and may perform de novo review and expand the record)
Carey v. Pennsylvania Department of Corrections, 61 A.3d 367 (Pa. Cmwlth. 2013) (two-part test and affidavit requirements for public-safety exemption)
Pa. State Police v. Grove, 161 A.3d 877 (Pa. 2017) (RTKL interpretation; transparency emphasis)
Pa. State Educ. Ass'n v. Commonwealth, Department of Community & Economic Dev., 148 A.3d 142 (Pa. 2016) (RTKL purpose to maximize public access)
LaValle v. Office of Gen. Counsel, 769 A.2d 449 (Pa. 2001) (discussing availability and policy supporting in camera review)
District Attorney of Blair County v. [Commonwealth], 880 A.2d 568 (Pa. 2005) (ordering in camera review to assess disclosure impact on investigations)
Woods v. Office of Open Records, 998 A.2d 665 (Pa. Cmwlth. 2010) (application of public-safety exemption)
Township of Worcester v. Office of Open Records, 129 A.3d 44 (Pa. Cmwlth. 2016) (in camera review appropriate for privilege determinations)